Intelligence Test: Justice Scalia And The Limits Of Brilliance

Scalia lacked empathy, and he fell down when it came to understanding how his rulings affected the lives of others.

As I sift through the news in the wake of Supreme Court Justice Antonin Scalia’s death, there’s one word I keep seeing over and over again:  Brilliant.

We’re told that even if you disagreed with Scalia’s extremely conservative views, you must stand in awe of his brilliance, his genius, his searing wit.

Fair enough. I have observed Scalia in action many times at the Supreme Court over the past 28 years. I don’t doubt that he was a pretty smart guy.

But I also know that there are different kinds of intelligence, and I suspect that Scalia excelled at some and failed at others.

There is technical knowledge – the ability to learn facts, to gather information and synthesize it and then apply what you’ve learned to the world around you. There’s the ability to present a clever and glib argument. There’s the power to project your views with confidence and state what you believe boldly and be able to defend it in the face of a withering counter-argument.

Scalia could do all of those things. Where he failed, I would assert, is in the area of what we might call social or emotional intelligence. Specifically, he lacked empathy, and he fell down when it came to understanding how his rulings affected the lives of others.

When LGBT Americans petitioned the courts for their rights, Scalia couldn’t be bothered. His vision of the Constitution didn’t encompass them. End of story. When women sought reproductive rights (not just legal abortion but increasingly even access to contraceptives) Scalia applied a cold and narrow formula that failed even to acknowledge the human costs of his actions.

Scalia was a big fan of the idea that government should be able to “honor” our traditions by endorsing religion in a general way. (This concept, by the way, is found nowhere in our Constitution – so much for “originalism.”) He didn’t seem to understand or to care how various forms of government-sponsored religion infringed on the rights of the people who don’t share those views.

The combative jurist even seemed to believe that some overtly religious symbols could have a secular interpretation, something any theologian worth his or her salt would dispute. During an oral argument in 2009, Scalia failed to grasp why anyone would be bothered by the idea of a cross being used as a war memorial. Showing a remarkable degree of cultural blindness, he argued that you see crosses all the time in cemeteries. Peter Eliasberg, an attorney arguing the case for the ACLU, had to explain to him, “It’s erected as a war memorial. I assume it is erected in honor of all the war dead. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”  

Scalia joined the high court in 1986. One of his first church-state cases was 1987’s Edwards v. Aguillard, a dispute from Louisiana challenging a state law that required creationism be taught alongside evolution in public schools. The law was struck down 7-2. Scalia was in the minority.

A few months after that ruling came down, I heard Scalia speak at an event in Washington, D.C. A scientist was bothered by his dissent and asked Scalia about it. Scalia seemed oblivious. He refused to accept that creationism is religion, and he truly didn’t understand the danger of subjecting millions of children to non-scientific concepts in public schools. (He was, it seems, not so brilliant about science.)

Scalia’s church-state views reflected a majoritarian streak. Relegating millions of Americans to second-class citizenship didn’t bother him a whit. This self-described “fool for Christ” seemed to have a difficult time understanding why other Americans might not care to join him and why minority rights are just as important as majority ones.

Technical intelligence is great, but it will take you only so far. Truly brilliant people at least try to get into the heads of those who are not like them. Smart people evaluate their own actions, attempt to assess the fallout from what they do and, at some point, ask, “What if there – by the grace of God or otherwise – were to go I?”

A person of true intelligence grapples with these issues. They can keep you up at night; such people know that brilliance lacking at least some degree of kindness, empathy and care for others is of little value.

I don’t believe Scalia was ever troubled by such questions. He slept soundly, secure in the knowledge that he was always right and that if his rigid and doctrinaire interpretation of the Constitution meant that a few people had their rights mauled in the process, so be it. 

You can call that many things. “Brilliant” isn’t one of them.