Saturday, March 12, 2016


By Eric Segall

My mother passed away Monday of Christmas week. The top of this Blog allows for essays about “law, politics, economics, and more.” This entry is mostly about the “more” but there is some law here as well.

My mother was a brilliant woman with several advanced degrees, including one in psychotherapy. In the years before she passed, we talked on the phone regularly about once a week. These conversations often lasted forty-five to sixty minutes and we talked about everything, including the law and the Court.

During one of those conversations, I was talking to my mother about the first big Obamacare challenge where Chief Justice Roberts, at perhaps the most important moment of his career, decided for the first time in his career, to vote with the four liberals and against the other four conservatives in a landmark constitutional law case. She asked me to speculate as to why he would do that. I provided some legal reasons but she didn’t seem convinced. My mother then mentioned that quite often workplace personal relationships factor into important professional decisions. I pondered that observation, which did ring true, and then  told her that in the weeks leading up to the case virtually every major media outlet in the country was focusing on Justice Kennedy and the history of the “Kennedy Court.” The light bulb then went on, and I wrote up my theory that at least part of Chief Justice Roberts’s flip-flop was his personal desire to make a loud statement that he, not Justice Kennedy, was the true Chief of the Court. That essay ended up in the Daily Beast which led to a kind invitation from Dahlia Lithwick to talk about the topic on SLATE’s Amicus Podcast. There is at least a little irony in the fact that even for a hardcore legal realist like myself, it took my mother’s acute sense of people, not the law, to trigger what I consider one of my best “legal” essays.

I am fortunate that my mother is the first member of my immediate family to pass away. When I think about her now, I find myself remembering mostly the good and very little of the bad. The truth is that, with her acute intelligence and fierce wit, my mother could at times be self-absorbed and self-protective. I can remember in a foggy way numerous times when I thought she acted badly but I can’t seem to conjure up the negative feelings about those episodes. I guess death creates that filter, though obviously not much time has gone by since her passing. I wish I could talk to my mom about these feelings.

One of my mother’s strongest character traits was her great empathy for people who had made mistakes or whom life had treated badly or arbitrarily. For example, she kept several employees over the years who either stole from her or otherwise engaged in behavior that would normally result in being fired. She had a soft spot for those less fortunate than herself.

I mention my mother’s empathy because I thought a lot about that when the news of Justice Scalia’s death came to me while I was vacationing with my family in the North Carolina mountains.  Ironically, just a few months before Scalia’s death, I wrote an article in the Wake Forest Law Review rhetorically asking how history would judge Justice Scalia. My answer was “not well” because of the obvious disconnect between Scalia’s loud and boorish criticisms of his colleagues for believing in a “living Constitution” and his voting pattern of consistently striking down laws in ways that could only be explained by a strong belief in an evolving, living Constitution. But, when Salon solicited me to write an essay about his passing the night we heard the news, all I could think about was how I would miss criticizing Justice Scalia, miss teaching his witty dissenting opinions, and miss reading about his frequent public rants that the Constitution is “dead, dead, dead.” I actually felt a deep loss, and that is what I wrote about in Salon.

But, of course, there is a big difference between the death of Justice Scalia and the passing of my mother. Neither historians nor the American people have a stake in remembering my mother accurately (and I might not even try).  But both need to have a clear picture of Justice Scalia. And, what I have been thinking about is how my mother and Justice Scalia were so different when it came to empathy. My mother, both before and after her career in psychotherapy, had a lot of empathy. Not so Justice Scalia, who seemed unable to professionally empathize with folks different from him. I am not going to take the space here to provide the many examples of this because we all know Scalia wouldn’t deny it. Text and history, he would say loudly, would be all that should matter to judges following the rule of law (justice and empathy be damned).

When I used to describe Scalia to my mother, she would call bullshit on his idea that he could decide cases without his personal values, beliefs, and ok, empathies, inevitably coming into play. Judges are not computers, she would say, they have feelings just like the rest of us.

I really miss my Mom.


Joe said...

Thanks for sharing. RIP.

Unknown said...

I'm so sorry.