The Scalias of Justice

I rarely find myself at a loss for words, but Antonin Scalia has made me so.  What is the most apposite term to describe this argument?

The question of the meaning of a cross in the context of a war memorial did give rise to one heated exchange, between Justice Scalia and Peter J. Eliasberg, a lawyer for Mr. Buono with the American Civil Liberties Union Foundation of Southern California.

Mr. Eliasberg said many Jewish war veterans would not wish to be honored by “the predominant symbol of Christianity,” one that “signifies that Jesus is the son of God and died to redeem mankind for our sins.”

Justice Scalia disagreed, saying, “The cross is the most common symbol of the resting place of the dead.”

“What would you have them erect?” Justice Scalia asked. “Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?”

Mr. Eliasberg said he had visited Jewish cemeteries. “There is never a cross on the tombstone of a Jew,” he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. “I don’t think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead,” he said. “I think that’s an outrageous conclusion.”

Casuistry?  “Specious or excessively subtle reasoning intended to rationalize or mislead.”  Specious implies “having the ring of truth or plausibility,” so that’s out, and excessive subtlety is not the problem here.  Sophistry?  “Plausible but fallacious argumentation.”  Again, plausibility is not in play.  Special pleading?  “A presentation of an argument that emphasizes only a favorable or single aspect of the question at issue.”  What would that favorable aspect be—that crosses are indeed the most common symbol, in some places, of the resting place of the dead?  Chicanery?  “Deception by trickery or sophistry.”  Sophistry (q.v.).  Idiocy?  “Extreme folly or stupidity.”  I’m no formal debater, but I don’t think that an argument from stupidity is what the good Jesuits at St. Francis Xavier taught Scalia, and he is plainly not an idot.  Babbittry? “Narrow-minded self satisfaction with an unthinking attachment to middle-class values and materialism.”  That’s getting warmer, but it’s unfair to middle-class materialists.

Does Justice Scalia actually not understand that the cross is, in the United States, the most common symbol of the resting place of the dead because most of those dead were Christians?  He’s plainly receptive to Ted Cruz [sic], representing the VFW and American Legion, who contends that the cross is not a religious symbol: “For many, many years, we have used the symbol of a Latin cross to memorialize fallen veterans.”

I don’t understand the penchant of so many devoutly religious people to insist that symbols of their faith are otherwise.  Every winter, when The War on Christmasâ„¢ flares up, you can count on some yahoo, who might happen to have a national radio program, insisting that there’s no problem with a crèche on the steps of City Hall—not by a narrow reading of the First Amendment—but because it’s not religious, it’s “historical.”  Of course, considering how things might appear to someone of another or no faith would constitute empathy, and we can’t have any of that in the high court.

20 thoughts on “The Scalias of Justice”

  1. As a Christian, I'm ashamed of behavior like this.

    I think the answer is that, alas, most American Christians — most white American Christians, anyway — think that the cross is a symbol of America at least as much as it's a symbol of Christ, and that any "real" American wouldn't make a fuss about resting beneath a cross.

  2. Scaliitry: plausible but fallacious argument, known by its proponent to be fallacious, and delivered with sarcasm.

  3. My wife suggests that the most appropriate religion-neutral-ish symbol to place on a grave would be a menorah, since the Maccabees fought a war of national liberation, and our soldiers likewise are supposed to be fighting for freedom rather than any baser motive.

  4. I guess we could challenge everyone we meet with a cross around their necks and ask them why they are displaying an unChristian symbol that merely symbolizes death in battle, and are they in favor of more deaths of soldiers?


  5. Seth Gordon's wife has a point, except that the menorah is a Jewish national symbol, not an American one. But there's lots of those: the flag, bald eagle, 3-cornered revolutionary war era hat, etc.

  6. And yes, I got Seth Gordon's wife's joke, but chose to ignore it. Most Christians don't realize the distinction she's making exists within Judaism. And a secular American symbol would be appropriate.

  7. "Idiocy? “Extreme folly or stupidity.” I’m no formal debater, but I don’t think that an argument from stupidity is what the good Jesuits at St. Francis Xavier taught Scalia, and he is plainly not an id[i]ot."

    This quasi-enthymeme is a non sequitur: the fact that Scalia is not stupid does not mean he cannot argue from stupidity. Similarly, one need not be a putz to argue from putzigkeit (though the case of Scalia does not present this particular question).

  8. I would suggest that insisting that the symbols of one's faith are not symbols of one's faith is an indication that one is not, in fact, devoutly religious, no matter how much one wishes to appear so.

  9. We'll have to find the latin or greek for "troll".

    I think it's also the argument from power: "I don't have to care whether what I'm saying makes sense, because you're the petitioner and I'm the judge." Since the first time I saw him speaking in public, Scalia has always impressed me as one who revels in wielding damaging power over others.

  10. I vote for argument from power. That seems to be the preferred mode of argument for all Supreme Court justices, whatever their ideological leanings, and Scalia is exceptionally adept at it. Just assert, in the face of all contradictions, that what you say is true. As a Supreme Court justice writing for the majority (which Scalia gets to do more and more often) once you assert it, it's so.

  11. What would an appropriate symbol for nonbelievers be? Contrary to popular belief, there are atheists in foxholes. If you're fighting for your country, wouldn't a symbol of that country be appropriate? If you're fighting for Halliburton, perhaps their corporate logo would suffice.

  12. …the menorah is a Jewish national symbol, not an American one. But there’s lots of those: the flag, bald eagle, 3-cornered revolutionary war era hat, etc.

    Be careful about the hat, Warren. Haman was Iranian.

  13. Golden Arches don't mean McDonalds. In the United States, the Arch is the most common symbol for the hamburger.

  14. It seems fair to disagree with a suggestion that a cross on a memorial constructed 75 years ago was not intended to honor all the dead of the war it referred to (or all the dead on 'our' side, anyway), whatever their religion. Did the builders of the monument intend to honor only the Christians? I doubt it. If they had been asked, they probably would have said "the cross applies to most of them, and that will have to do." Individual tombs can be designed for their occupant; collectives may have to generalize.

    We're more sensitive these days to the exclusionary effect of the alleged generic that covers only the majority, or the dominant group. Thus all the 'he/she' formulations we now see and many of us use.

    I doubt that most builders of memorials today would erect only a cross to honor a diverse group, even if most of that group were Christian.

    So if Justice Scalia is saying that it is not necessary to take down a 75-year-old monument because by the standards of the 21st century it is not sufficiently inclusive, or because to the 21st-century eye it favors one religion, one can have some sympathy, whether or not one agrees with that conclusion.

    However, his statement that the cross 'of course' is generic, and his outrage at the suggestion that it is not, suggests that he has not been paying attention to the discourse of identity for the past 40 years or so, not to mention that he has forgotten the civility that a judge should model to the Bar.

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