Before the imposing body of Justice Antonin Scalia was even cold, acrimonious partisan anticipation over replacing him aligned liberals and conservatives in opposed phalanxes. Fight over the man’s legacy first, bury him later. The Republican Senate Majority, as I write, stands with spears bristling in front of the confirmation process, while President Obama is determined to send a hapless nominee their way, come what may.

But asThe New York Timesnotes, Scalia in recent times wasn’t silent about what’s needed for the future of the highest Court. What did he want? In a word,diversity.

Anyone who’s read one true sentence about Scalia will be surprised to hear that. Isn’t this the man who opposed affirmative action, gay rights, and (we all suspect) civil rights generally? Didn’t he want to turn the clock hands back to 1950, when the color of almost every powerful person was as white as the slats of his (usually,his) picket fence? How could this progress-opposed warlord call fordiversity?

Well, “diversity” can mean diverse things. Usually “diversity” promotes persons historically disenfranchised. But Scalia meant it differently. Noting that the Court was composed of people from either the East or West Coast (Roberts from Indiana being the only exception), noting that it had six Catholics and three Jews, and noting that they had all attended either Harvard or Yale Law, Scalia wanted more intellectual, religious, and educational diversity. In short, he wanted an evangelical Christian from somewhere in the middle, South, or West of the country. Not just another “tall-building lawyer.”

最近，斯卡利亚在对奥贝格费尔诉霍奇斯案(Obergefell v. Hodges，该案批准了同性婚姻)的异议中写道，“没有代表就没有社会变革”，呼应了“没有代表就没有税收”的说法。他的观点是，一个缺乏来自美国社会大部分成员的法院做出拔掉文化传统深层根基的决定是错误的。一个能够正确裁决同性婚姻的法院需要一个来自不太知名的地方和血统的福音派来对抗东海岸常春藤大学强加的短视。

But setting aside Scalia’s predictably conservative motivations (no gay marriage!), I want to ask whether his call for diversity was even coherent with his own judicial philosophy. Was it?

Scalia was anoriginalist. That means he favored interpreting laws according to what their text would have meantat the time it was written. Constitutional law, on this view, involves reading the Constitution according to the “original” meaning of its sentences from 1787. The meaning of the Constitution is frozen in time like Ötzi, the pre-historic man found frozen in a glacier.

Maybe Scalia hoped his own words would eventually be accorded the same respect, a legacy frozen in time?

But from the standpoint of logical coherence, I don’t think Scalia was thinking clearly when he wished for diversity, especially in the idiosyncratic sense of “diversity” he intended, since that wish fits ill with his originalist philosophy.

You see, an originalist legal theory is flagrantly indifferent to whether the people interpreting the Constitution are savvy to ordinary or genuinely diverse folks. Still less do they need torepresentthem. What Scaliashouldhave said, given his theory of interpretation, is that the Court should have an historical lexicographer or syntactician in its make up. What should matter is getting the original meanings of words right, which takes an expert in history of American English. But there is little reason to think this expertise should be found among evangelicals in the middle, Southern, or Western States. Evangelical Christiansaren’t usually known for historical accuracy.

Scalia, of course, would offer me a counterargument, were he here and willing to condescend. But it’s fair to say that his calls for originalism and his calls for “diversity” can only be made to stick together with a dense packing of verbal fudge.

There is, however, another theory of legal interpretation thatdoescohere well with the idea that we should have genuine diversity of the judiciary. And that is the legal philosophy of the late, great Ronald Dworkin, who was also a philosopher. This should not be surprising, since Dworkin championed diversity inother waystoo.

Dworkin held that legal interpretation involves working out underlyingmoral principlessuggested by a legal text. Scalia asked: what did the words of the laws originally mean? Dworkin asked: what moral ideasstand behind这些话有意义，值得坚持吗?

在德沃金看来，我们可以为多元化的司法找到一个真正的地方。众所周知，不了解他人的情况也会导致道德上的无知。如果你不知道以别人的身份生活是什么样子，你的道德判断可能会被扭曲。This is suggested by Dan Batson’sworkon how imagination promotes empathy. And it is exemplified in a bad way by the phenomenon of privilege—be it racial, economic, geographic, or sex or gender based—as we heardrecentlyon中国伊朗亚洲杯比赛直播.

This observation gives the fan of Dworkin, such as myself, a route from legal philosophy to judicial diversity. For Dworkin, moral principles must be understood in order to interpret the law. Moral ignorance must be overcome to understand what moral principles are relevant to situations a law is meant to cover. Diversity helps us overcome moral ignorance. So the judiciaryshould bediverse.

What, if anything, justifies a diverse judiciary? It would be scintillating to hear Dworkin and Scalia argue this one out. But we’re doomed not to hear anything remotely as interesting as that from the nomination battles to come. If we squint and look carefully, however, we might just notice, hovering over the liberal and conservative battle lines, the lingering ghosts of Scalia and Dworkin, looking down and urging their allies onward, over the fraught, dusty field in which their now cold bodies lie.