Can Justice Scalia Still Vote?

Does Justice Scalia have to give up his career because he is dead?

Mr. Kory Langhofer, a “prominent election law attorney” in Arizona recently suggested that we should count Justice Antonin Scalia’s votes on current cases before the Supreme Court despite the fact that Scalia is dead. He said that Scalia probably expressed himself to a greater or lesser extent during preliminary meetings on these subjects. Surely, we can deduce from those notes and conversations exactly how he would have voted—especially given our knowledge of his previous opinions. But after considering this possibility for a while, I am convinced that a dead Scalia would be different from a live Scalia in certain important ways. His opinions might well have changed.

Adolescence and Death

Death is a major transition in life (from life), greater probably than those distinctive changes characteristic of adolescence, which has always been regarded as the time of life most remarkable for change. Familiar though these transformations are, let me list them here:

  1. The growth spurt. Girls grow fastest, around the time of beginning to menstruate. Boys grow faster later on. The boys’ voices deepen. Both sexes grow hair in unaccustomed places. Hormonal changes may cause acne.

The psychological changes that result may include irritability, mood swings, including giggling, rebelliousness and a general lack of respect.

  1. Social changes. Boys and girls tend to go around in packs, but late in adolescence there is some mixing of the sexes.

The matching psychological changes deal largely with sex. What was once considered disgusting seems now to be interesting and, under very special circumstances, such as marriage, morally permissible. Later on in adolescence there is more of an attitude of “What the hell.”

  1. Adolescent boys and girls begin to think in terms of a college and a career.

Psychologically, career choices change from fireman to hedge fund manager. Girls who wanted to marry and settle down behind a picket fence decide to marry someone who is rich, or they decide to get rich on their own.

  1. Most important for our discussion, the ideas of boys and girls change throughout adolescence. Often they enter into conflict with their parents about dress, ornamentation such as earrings or tattoos, and religious and social values. Many become less religious, some become more.

In short, a time of significant life changes causes changes in attitude, in the very ways we regard ourselves as having a particular identity and a particular responsibility to ourselves and to others.

Let us assume, as Justice Scalia undoubtedly believed since he was a Roman Catholic, that there is an afterlife and that he is still surviving in some sense. Is it possible that his opinions about affirmative action and Gerrymandering may have changed?

Here are some of the obvious facts about dying:

  1. There is a complete dissolution of the body, certainly a more profound physical change then occurred even in adolescence. Surely, it is reasonable to think that being disembodied may affect ideas about, for instance, the right of a woman to control her own body. Perhaps Scalia has become more sympathetic to this view. Perhaps less.
  2. There is now a complete inability to communicate with loved ones. Would Scalia now consider limitations on free speech to be less tolerable or more?
  3. Would the experience of being buried change Scalia’s thoughts about the personhood of corporations since corporations are never buried underground?

Practically all of jurisprudence could be affected one way or another by being dead. Is there some way, we can deduce what Scalia’s current views are? Physical devices such as digging a deep hole down to Scalia’s coffin offer no hope. It was noted even before he was buried that he no longer spoke. Séances give no reliable information; but let us conduct a thought experiment.

Suppose that in the bliss of the afterlife, Scalia has found himself in the ineffable presence of Jesus Christ. Suppose he has listened attentively to what Jesus has to say. Actually being in Jesus presence must affect the way a person thinks. Surely, he would take more seriously Jesus’ admonition to rebel against unjust laws. Jesus, when he was alive, expressed contempt for property rights (not exactly in those terms.) The poor deserve to be exalted and the rich to be condemned. On at least one occasion he condemned capital punishment as wrong. Without the temporal distractions of hunting and opera, Scalia might very well have become more Christian in his views, turning into somebody who might be called a democratic socialist, or something like that. Still, would it not be too speculative to presume just what his views are currently?

A quick review of the history of the court gives no suggestion of a justice voting after death, but I don’t think the matter has ever been decided definitively. I am sure no justice has ever been propped up on the bench after death, because his lack of vigor would have been remarked on in the press. And it was not. Occasionally, the press overlooked a justice sleeping or looking bored, as Justice Thomas often does, but being completely dead is another matter altogether. I think there is good reason why there has been no legal precedence for allowing dead justices to vote, and I think common sense tells us that that is the way it should be. (c) Fredric Neuman Author of “Superpowers.”