Rest in peace, Justice Scalia.
My original idea for this post was to quote the old saying “if you can’t say some thing nice about someone, then don’t say anything at all,” followed by a page of nothingness. However, great minds think alike, as they say (or obvious jokes are obvious), and Mock, Paper, Scissors had it up and posted before I could even open my browser. Good show Tengrain. Good show.
So having lost my planned commentary on Antonin Scalia’s death, I was left with a choice. I could make the same joke as I originally intended to make while linking to MPS and congratulating them on beating me to the punch, I could post absolutely nothing on the subject, or I could turn my brain on and actually write something about the passing of a Supreme Court Justice. The first option was out immediately. Sloppy, lazy, and no matter the truth, it would appear as if I simply stole tengrain’s joke and called it a day. The second choice is exactly what I am trying to get away from by relaunching the blog. No, I was going to post something about the news. Ignoring it was really not an option. So it seems now, as I drink a cup of Peet’s and breath out a immense cloud of nicotine spiked vapor that I must remember where the “on” switch is located for my brain. I promise the following will be a bit more substantial than my tweet of “ding dong, the witch is dead.” Also, unless otherwise noted, the factual information in the following comes from Wikipedia.
Antonin Scalia, born March 11, 1936 in Trenton, New Jersey, was one of the most divisive figures in American government. After attending Georgetown University for his undergraduate degree, he went on to Harvard Law. At both schools, he was an exceptional student, according to Wikipedia:
In 1953, Scalia enrolled at Georgetown University, where he graduated valedictorian and summa cum laude in 1957 with a Bachelor of Arts degree in history. While in college, he was a champion collegiate debater in Georgetown’s Philodemic Society and a critically praised thespian. He took his junior year abroad at the University of Fribourg, Switzerland. Scalia studied law at Harvard Law School, where he was a Notes Editor for the Harvard Law Review. He graduated magna cum laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard University: The fellowship allowed him to travel throughout Europe during 1960–1961.
After six years in a Cleveland law firm, Scalia became a law professor at the University of Virginia, sacrificing a chance at becoming a partner in the firm to follow his desire to teach. In 1971, after 4 years teaching, President Nixon drafted Scalia into public service, appointing him as General Counsel for the Office of Telecommunications Policy. His virginity thus ended, Scalia would continue in public service until President Carter’s victory left him unemployed.
- General Counsel for the Office of Telecommunications Policy, 1971
- Chairman of the Administrative Conference of the United States, 1972-74
- Assistant Attorney General for the Office of Legal Counsel, 1974-76
During the Ford presidency, Scalia appeared to spend most of his energy arguing for executive privilege, testifying several times before Congress in support of President Ford’s desire to not turn over certain documents. He took a key role in arguing for a presidential veto of a bill amending the Freedom of Information Act that greatly widened the scope of the act, a position that was successful partially, as Ford did indeed veto the bill, only to see his veto overridden. In 1976’s case Alfred Dunhill of London, Inc. v. Republic of Cuba, Scalia had his first opportunity to argue a case before the US Supreme Court and was successful. Also successful was Jimmy Carter’s attempt to win the White House, resulting in Scalia returning to the private sector. He first spent a few months with the American Enterprise Institute, a well-known conservative think tank. He then went back to teaching, this time at the University of Chicago Law School, as well as spending a year as a visiting professor at Stanford.
After Reagan took control of the White House in 1980, everything seemed set for Scalia to return to public service. It seemed to take longer than expected, however, as his first desired position went to another candidate, and then he declined an offered position, preferring to wait for something more consequential. This paid off in 1982 when he was offered, and accepted, a position on the US Court of Appeals for the District of Columbia Circuit. While serving in the DC circuit, Scalia built up an impressive conservative record and quickly rose to Pres. Reagan’s short list for the Supreme Court, along with Robert Bork. Then in 1986, Chief Justice Burger announced his retirement and Pres. Reagan first nominated Justice Rehnquist to fill the position of Chief Justice, and then Antonin Scalia to fill Rehnquist’s Associate Justice role.
Looking back on the confirmation proceedings, it is easy to just assume that nominees were just rubber stamped back then when you notice that Scalia faced no opposition and was confirmed with a 98-0 vote. Things really are not that cut and dried, however, as Scalia’s confirmation hearings took place soon after the divisive fight over Renhquist becoming Chief Justice. Yes, Presidential nominees were met with less knee-jerk opposition at the time, but some think that a large part of why Scalia flew through the proceedings untouched was due to the Judiciary committee having no taste for a second fight, along with a reluctance to hold up the potential first Italian-American Supreme Court Justice. While Scalia was approved 98-0, the vote for Renhquist to become Chief Justice was a much tighter 65-33. No matter the confirmation process, on September 26, 1986, Scalia became Justice Antonin Scalia, the first Italian-American to sit on the nation’s top court.
To say Antonin Scalia was a divisive figure on the Supreme Court would be an understatement on par with saying the GOP controlled Congress that Pres. Obama must work with is a little bit obstructionist. His Originalism did not always mean he fell on the conservative side of decisions. He was a strong defender of the Confrontation clause of the Sixth Amendment, protecting the right’s of defendants to confront their accuser, including lab technicians in drug cases, as well as the Sixth Amendment’s promise of a trial by jury, striking down a judge’s ability to increase the sentence of a convict if the judge felt the crime was motivated by hate in Apprendi v. New Jersey. In Blakely v. Washington, and then United States v. Booker Scalia took down mandatory sentencing guidelines, turning them into suggestions rather than ranges set in stone. Fans of the Fourth Amendment could also find opinions by Scalia to like; in Kyllo v. United States he found that Han and Leia’s son was indeed guilty of murdering his fa…wait. Sorry, that’s Kyllo, not Kylo. Sorry. ahem, in Kyllo v. United States he wrote the majority opinion finding that thermal imaging of a home was an illegal search, and dissented in the 1991 case County of Riverside v. McLaughlin that found it was legal to hold someone arrested without a warrant for 48 hours before seeing a magistrate. In 1990 he wrote the Court’s opinion striking down a hate speech law in St. Paul, admirably protecting the First Amendment. (Sorry fellow liberals, if you support hate speech laws you may want to reexamine the reasons why. Hate speech needs to be confronted and defeated in the marketplace of ideas, not outlawed and suppressed.) Unfortunately, while more than I expected to write in this section, that is about it when it comes to praising his decisions.
I am not going to spend a lot of words detailing his opinions progressives would find noxious. There really isn’t a need, as most liberals know exactly who Antonin Scalia is and what his beliefs are, because he made them no secret. He was outspoken, at times rude, at times condescending with those who disagreed with his views. Life truly is black and white, good and evil to Justice Scalia, as anyone who saw him turn on an interviewer who seemed incredulous at his belief in a literal Devil:
Soon afterwards Senior brought the conversation to the afterlife asking, “You believe in heaven and hell?” to which the Justice responded, ‘Oh, of course I do. Don’t you believe in heaven and hell?’
Turns out Ms. Senior does not – to which Scalia tsked, ‘Oh, my.’
In a reflection on salvation that seemed to be comparing Judas Iscariot to gay people, Scalia was unwilling to speculate if Senior’s disbelief indicates that she will wind up in hell. However, just as Senior was ready to move on to Scalia’s drafting process, the Justice leaded forward and told her:
“I even believe in the Devil.”
Q: So what’s he doing now?
A: What he’s doing now is getting people not to believe in him or in God. He’s much more successful that way.
But as the questioning continued Scalia appears to have gotten irate saying:
You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil!
While a devout Roman Catholic, Antonin Scalia was pro-life only in relation to the unborn, supporting the death penalty fully. His support for the death penalty included killing those who offended at 15 and 16 years of age, as well as the mentally retarded, using his originalism as justification in the latter case. He firmly believed that the Constitution did not include a right to abortion, urging his fellow justices to overturn Roe V. Wade at any possible opportunity. In Stenberg v. Carhart in 2000, Scalia dissented from the Courts decision to overturn Nebraska’s ban on “partial-birth abortions” due to the lack of an exception for the health of the mother, comparing the Court’s decision to Dred Scott and Korematsu. In 2007, Scalia joined with the four other Catholics on the Court in Gonzales v. Carhart to uphold a federal ban on the procedure, a decision that faced blazing criticism on First Amendment grounds. From Wikipedia:
University of Chicago law professor Geoffrey R. Stone, a former colleague of Scalia’s, criticized Gonzales, stating that religion had influenced the outcome as all five justices in the majority were Catholic, whereas the dissenters were Protestant or Jewish. This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone is there.
Ahem. Me thinks the esteemed juror doth protest too much. Scalia was firmly against affirmative action, voting against it every chance he got, and was similarly skeptical of laws that sought equality of the sexes. Recently Scalia allowed his hatred of affirmative action to get the best of him in Fisher v. University of Texas, either revealing his own racism or simply giving the appearance of racism. As Mother Jones reported:
During oral arguments in a pivotal affirmative action case on Wednesday morning, Supreme Court Justice Antonin Scalia raised the suggestion that African American students might belong at less rigorous schools than their white peers, and that perhaps the University of Texas should have fewer black students in its ranks.
Scalia’s comments came during arguments in Fisher v. University of Texas, a case over whether the university’s use of race in a sliver of its admissions decisions is constitutional.
There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.
He went on to say, “I’m just not impressed by the fact the University of Texas may have fewer [blacks]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Even more than affirmative action however, Justice Scalia saved his worst vitriol for the gay and lesbian community. In 1996 Scalia dissented from the majorities opinion in Romer v. Evans, a ruling that effectively ended the 1986 ruling that permitted states to make homosexual sodomy illegal, Bowers v. Hardwick. Quoting from Wiki once again:
Scalia later said of Romer, “And the Supreme Court said, ‘Yes, it is unconstitutional.’ On the basis of—I don’t know, the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.”
In 2003 Lawrence v. Texas formally reversed Bowers, a case that Scalia not only dissented from, but practically made a mockery of himself over.
According to Mark V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state’s argument for it that the Chief Justice intervened. According to his biographer, Joan Biskupic, Scalia “ridiculed” the majority in his dissent for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey. In March 2009, openly gay Congressman Barney Frank described him as a “homophobe”.Maureen Dowd described Scalia in a 2003 column as “Archie Bunker in a high-backed chair”. In an op-ed for The New York Times, federal appeals judge Richard Posner and Georgia State University law professor Eric Segall described as radical Scalia’s positions on homosexuality, reflecting an apparent belief that the religious stances supposedly held by the majority of US citizens should take precedence over the Constitution and characterizing Scalia’s “political ideal as verg[ing] on majoritariantheocracy.”
Scalia was a supporter of the 2nd Amendment as well, and I really don’t think I need to tell you how he voted in regards to marriage equality.
As disgusting as I find many of the man’s beliefs, it can not be said that he was not a brilliant legal mind. He was a man of conviction who seemed to love life, taking his role on the Court seriously while never losing his sense of humor. For such a conservative firebrand, it may come as a surprise to find his closest friend on the Court was Ruth Bader Ginsburg, a progressive hero. The two shared a love for the opera, ” even appearing together onstage as supernumeraries in Washington National Opera‘s 1994 production of Ariadne auf Naxos. Ginsburg was a colleague of Scalia’s on the D.C. Circuit, and the Scalias and Ginsburgs had dinner together every New Year’s Eve.
I am not going to lie. I feel the nation is much better off with Scalia off the Supreme Court. Even if the US Senate succeeds in obstructing Obama’s nominee to replace him, even if a Republican wins the White House this year, I find it unlikely that they can get a nominee approved who is as dependable of a conservative vote as Scalia was in his time on the bench. I believe he used his originalism as an excuse to hide his religious motivations behind, with the Court’s 5-4 ruling along religious lines in Gonzales v. Carhart being one of the low points in the history of the Court, making mockery out of JFK’s famous speech allaying fears of his Catholicism. His belief in a literal Satan as an actual force in reality, while possibly shared by a large portion the the population, is none the less terrifying coming from a man with his level of education and power. That being said, I wish I was celebrating his removal from the Court because he retired; not due to his death. I wish nothing but the best to his family and friends in this difficult time. As a person, I know the pain that his death has caused his loved ones.
Yet as a public figure, as a Justice of the Supreme Court, I am nothing but glad to see him go.
I have oral surgery later today, so this will be the last post of the day. I hope to have a post detailing what Scalia’s death means to the 2016 Presidential campaign tomorrow.