The Supreme Court, Fact, and Fiction

Antonin Scalia has died, and people have a lot to say about it. There are those who have been quick to lavish praise on this lion of an intellectual, this constitutional powerhouse, this uniquely funny and acerbic jurist. It’s also been interesting to hear from (mostly gay and African American) people who wonder why a man’s death is reason to ignore the vitriol of his insults (for those of you who don’t know that much about US politics, you can read about Scalia’s attitude toward gays here: and his attitude toward African Americans here:

And no one hesitated to start debating his replacement—who Obama will nominate, and whether the Republican-controlled senate will hold a vote on this nominee.

I write about the Supreme Court. I find it an utterly fascinating institution, both political and apolitical. Both transparent and so, so opaque. About the law, and about people. One of the comments about Scalia’s death that has stuck with me is that Aaron Sorkin (West Wing, The American President) couldn’t have scripted a more dramatic moment in American politics.

I jokingly posted on Facebook the day Scalia died that my novel-in-progress, Benched, would have to take a big turn to appropriately contend with this pivotal moment in the country’s trajectory. The overlaps between fact and fiction when it comes to the Supreme Court are fascinating because they happen not only in novels such as Barring Complications, which is fiction but draws heavily from elements of real-life court cases about gay marriage and about the judges and lawyers involved in those cases, but also on news programs and in online articles. We don’t know what happens when the justices meet to discuss cases, so we make it up. We don’t know—and are loathe to even imagine—how people who disagree so fundamentally could ever be friends, so we fixate on Scalia’s close friendship with Ruth Bader Ginsburg. We’ve seen them on the back of the same camel, but we’ve never heard them fight, and I don’t for a moment believe they didn’t. Or maybe when I say I firmly believe they had heated arguments, I’m falling into the same trap as those people masquerading as news journalists, by treating my imagination as fact.


But as a fiction writer, I get to do just that. I won’t fundamentally change the plot of Benched because a real-life justice’s death has created a vacuum into which our country is pouring our partisan differences, our eagerness for a confrontation, and our pessimism. But the preoccupations of politicos and next-door neighbors who can’t stop talking about it have reminded me of where the heat is when we consider the Supreme Court.

The ways Benched will address Scalia’s death and its aftermath will be subtle. But they’ll be there nonetheless.

If only I could find time to write….




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