Would Antonin Scalia convict Jack Bauer?
By Corey Robin
I’ve decided to feature a brief excerpt from The Reactionary Mind from chapter six, “Affirmative Action Baby,” which profiles the thought and theory of US Supreme Court Justice Antonin Scalia. Many think of Scalia as either a social conservative or fussy originalist. I argue that he’s neither. He’s something far stranger, more wild: one part Nietzschean, one part Social Darwinist, one part post-modernist, and two parts crazy.
Next to Clarence Thomas, Antonin Scalia is the most conservative justice on the Supreme Court. He also loves the television show 24. “Boy, those early seasons,” he tells his biographer, “I’d be up to two o’clock, because you’re at the end of one [episode], and you’d say, ‘No, I’ve got to see the next.’” Scalia is especially taken with Jack Bauer, the show’s fictional hero played by Kiefer Sutherland. Bauer is a government agent at a Los Angeles counterterrorism unit who foils mass-murder plots by torturing suspects, kidnapping innocents, and executing colleagues. Refusing to be bound by the law, he fights a two-front war against terrorism and the Constitution. And whenever he bends a rule or breaks a bone, Scalia swoons.
Jack Bauer saved Los Angeles . . . . He saved hundreds of thousands of lives . . . . Are you going to convict Jack Bauer? Say that criminal law is against him? You have the right to a jury trial? Is any jury going to convict Jack Bauer? I don’t think so. So the question is whether we really believe in these absolutes. And ought we to believe in these absolutes?
Yet Scalia has spent the better part of his career as a lawyer, professor, and jurist telling us that the Constitution is an absolute, in which we must believe, even when—particularly when—it tells us something we do not want to hear. Scalia’s Constitution is not a warming statement of benevolent purpose, easily adapted to our changing needs. His Constitution is cold and dead, its prohibitions and injunctions frozen in time. Phrases like “cruel and unusual punishment” mean what they meant when they were written into the Constitution. If that produces objectionable results—say, the execution of children and the mentally retarded—too bad. “I do not think,” Scalia writes in Nixon v. Missouri Municipal League, that “the avoidance of unhappy consequences is adequate basis for interpreting a text.”
Scalia takes special pleasure in unhappy consequences. He relishes difficulty and dislikes anyone who would diminish or deny it. In Hamdi v. Rumsfeld, a plurality of the Court took what Scalia thought was a squishy position on executive power during wartime. The Court ruled that the Authorization for the Use of Military Force, passed by Congress after 9/11, empowered the president to detain U.S. citizens indefinitely as “illegal enemy combatants” without trying them in a court of law. It also ruled, however, that such citizens were entitled to due process and could challenge their detention before some kind of tribunal.
Scalia was livid. Writing against the plurality—as well as the Bush administration and fellow conservatives on the Court—he insisted that a government at war, even one as unconventional as the war on terror, had two, and only two, ways to hold a citizen: try him in a court of law, or have Congress suspend the writ of habeas corpus. Live by the rules of due process, in other words, or suspend them. Take a stand, make a choice.
But the Court weaseled out of that choice, making life easier for the government and itself. Congress and the president could act as if habeas corpus were suspended, without having to suspend it, and the Court could act as if the writ hadn’t been suspended thanks to a faux due process of military tribunals. More than coloring outside the lines of the Constitution, it was the Court’s “Mr. Fix-It Mentality,” in Scalia’s words, its “mission to Make Everything Come Out Right,” that enraged him.
Scalia’s mission, by contrast, is to make everything come out wrong. A Scalia opinion, to borrow a phrase from New Yorker writer Margaret Talbot, is “the jurisprudential equivalent of smashing a guitar on stage.” Scalia may have once declared the rule of law the law of rules—leading some to mistake him for a stereotypical conservative—but rules and laws have a particular frisson for him. Where others look to them for stabilizing checks or reassuring supports, Scalia looks for exhilarating impediments and vertiginous barriers. Where others seek security, Scalia seeks sublimity. Rules and laws make life harder, and harder is everything. “Being tough and traditional is a heavy cross to bear,” he tells one reporter. “Duresse oblige.”
That, and not fidelity to the text or conservatism as it is conventionally understood, is the idée fixe of Scalia’s jurisprudence—and the source of his apparent man-crush on Jack Bauer. Bauer never makes things easy for himself; indeed, he goes out of his way to make things as hard as possible. He volunteers for a suicide mission when someone else would do (and probably do it better); he turns himself into a junkie as part of an impossibly baroque plan to stop an act of bioterrorism; he puts his wife and daughter at risk, not once but many times, and then beats himself up for doing so. He loathes what he does but does it anyway. That is his nobility—some might say masochism—and why he warms Scalia’s heart.
It means something, of course, that Scalia identifies the path of most resistance in fidelity to an ancient text, while Bauer finds it in betrayal of that text. But not as much as one might think: as we’ve come to learn from the marriages of our right-wing preachers and politicians, fidelity is often another word for betrayal.
Corey Robin teaches political science at Brooklyn College and the CUNY Graduate Center, and is the author of The Reactionary Mind: Conservatism from Edmund Burke to Sarah Palin. He blogs at coreyrobin.com.