Glenn Greenwald writes about the absurd umbrage taken by two right wing law professors at Georgetown University law school when some of their colleagues demurred at the effusive praise given to the late justice Antonin Scalia by the dean of the school.
These two professors claimed that speaking ill of Scalia was unwarranted and worried about the possible trauma inflicted on law school students who liked Scalia by having to hear criticisms of him. The professors wrote, “Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students.”
As Greenwald says, this is remarkably patronizing towards law school students and that indeed they should be exposed to contrasting views of a judge’s legacy.
But what this Georgetown Law controversy even more strongly illustrates is how and why the “etiquette” rule against speaking ill of a recently deceased individual is so wildly inapplicable, and so dangerous, when it comes to influential public figures. As I’ve written before in the context of the deaths of Margaret Thatcher, Ronald Reagan and Christopher Hitchens, this “rule” – that one is allowed only to express praise and admiration for a public figure who dies but not criticism or dissent – is a recipe for unchallenged propaganda. Manipulative commentators exploit this post-death period to create unearned, baseless hagiography of these influential actors, and that hagiography is then consecrated, and endures, as Truth because nobody is allowed to dissent from it – because doing so is deemed gauche, uncivil, indecent, and “cruel beyond words.”
It is extremely consequential how the legacy of Scalia’s jurisprudence is understood. That understanding will affect all sorts of vital decisions in the future, from new court appointees to the methods used to understand and apply the law. This “rule” that dictates that only praise but not criticism of Scalia can be expressed – under the guise of “etiquette” and “decency” – is a deceitful tactic for winning an important public debate without having to actually engage the arguments.
We’re not talking about Scalia, The Friend, or Scalia, the Grandfather. Virtually none of us knew him in those roles. We’re talking about Scalia, the highly polarizing, highly controversial Supreme Court Justice whose actions and beliefs affected the lives of millions of people. We’re not guests at his family’s house for a wake. We’re citizens shaping how he and his public actions will be understood and remembered and perceived. Trying to suppress any criticisms of him, so that only adulation can flourish, is worse than irrational; it’s propagandistic.
That doesn’t mean one should express glee that Scalia is dead, nor does it mean that if one is a family friend of his relatives that one should spout criticisms in their grieving faces. But it most certainly does mean that from the moment public adulation of someone like this is permitted, so, too, must criticisms of them be permitted. That is especially true at an academic institution devoted to the study, practice and debate of law. To insist that only one side is permitted to be heard – the side that hails Scalia as a benevolent genius – is as oppressive and anti-intellectual as it gets.
At times like this, I like to listen once again to The Eulogy Song from the Australian comedy show The Chaser’s War on Everything that perfectly punctures the ‘don’t speak ill of the dead’ sentiment. [Language advisory]