The Justice Scalia Mythology that Still Haunts our Politics and our Law. By Eric Segall

www.dorfonlaw.org

9 - 12 minutes

By Eric Segall - August 16, 2021 

Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still severely impact our politics and our law. Not long after his death, George Mason University received a large sum of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School. Recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law position. While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint. There is even a play written about Scalia which was performed in the shadow of the highest Court in the land.

These lavish testaments to the late Justice are deeply insulting to women, people of color, LGBTQ folks, and non-Christians, as well as dangerous perpetuations of the fiction that Scalia was a Justice worth honoring. What Scalia stood for the most was the privileging as a matter of law of antiquated and unjust legal traditions, favoring white males over outsider groups, and allowing the government to treat the religious over the secular under the establishment clause. Mountains of evidence for these claims can be found in Scalia’s written opinions, his questions during oral arguments, and his off-the-court statements.

Before turning to that evidence, however, it is important to discredit one of the most common myths surrounding Justice Scalia. As I have written elsewhere, he was no originalist, despite his oft-repeated claims to the contrary. Scalia often ignored originalism altogether (affirmative action cases); distorted history beyond recognition (Second Amendment and Federalism cases); or just looked at those isolated historical sources that supported the conservative results he wanted to reach (campaign finance regulation). Scalia is often credited by conservatives for voting liberal in criminal procedure cases but he did not vote that way very often and, according to Professor Lawrence Rosenthal, he only voted originalist in 18% of fourth amendment cases. Scalia was in no sense an originalist Justice when it came to his votes.

Apart from his faux originalism, Justice Scalia’s opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities. It must be remembered, of course, that Supreme Court Justices should be judged according to the values of the times in which they lived. There are numerous Supreme Court Justices, maybe most Justices prior to 1954, who we still honor and who undoubtedly held racist, sexist, and anti-LGBTQ views. But Justice Scalia made all of the statements below (and issued all of the votes discussed in this post) in the last 35 years.

In 1996, he was the only dissenter in a case requiring the Virginia Military Institute, an elite state-funded military college, to accept women after it refused to do so for over a century. Scalia argued that courts should defer to all but the most irrational of laws that discriminate against women. Even Chief Justice William Rehnquist, an opponent of civil rights progress for decades, disagreed with Scalia in the VMI case.

At the oral argument in the landmark Shelby County case, which gutted the Voting Rights Act, Justice Scalia responded to the point that a unanimous Senate had passed the law by saying that the Act was a “perpetuation of racial entitlement.” In light of this country’s sordid history of intentional suppression of Black voters through violence and literacy and character tests, this statement unsurprisingly shocked many people. The right to vote is not an entitlement (in the pejorative sense), racial or otherwise.

Scalia voted to strike down every affirmative action law he ever faced and on his way to doing so revealed his true self. At the oral argument in a case involving the University of Texas, Scalia said the following: “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…. I’m just not impressed by the fact that that the University of Texas may have fewer [Blacks]. Maybe it ought to have fewer. And …when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.”

Not that long ago, the University of Texas was 100 percent white. When the school later used race as “a factor of a factor of a factor,” in the words of Justice Anthony Kennedy, to attain more diversity, Scalia steadfastly voted no, and suggested Blacks did not belong there anyway.

Scalia’s dissents and rhetoric about gays and lesbians bordered on the medieval. Dissenting in a 2003 case striking down a Texas law making it a crime for adults to engage in private, consensual gay sex, Scalia said that “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, scoutmasters for their children [and] teachers in their schools.” These statements, whether true or not, were projections of Scalia’s prejudice.

In another case, Scalia compared homosexual conduct to murder and bestiality. When he was later asked about these statements by a gay Princeton student, he responded, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.”

Justice Scalia also “interpreted” the first amendment’s establishment clause out of the Constitution. He said in several different opinions that legal coercion or compulsion was a requirement that plaintiffs had to establish to show the government violated the clause and relatedly that the government should be allowed to symbolically prefer one religion over others. But the free exercise clause, also in the first amendment, is violated when the government punishes or threatens religious exercise or treats one religion better than others or better than non-religion. Any government behavior that meets Scalia’s establishment clause test would also violate the free exercise clause. There is nothing in the history of the first amendment, however, suggesting that the two clauses should perform identical functions or that the establishment clause has no independent meaning.

Based on this misreading of the establishment clause, Scalia voted to uphold school prayers at graduation ceremonies, sectarian prayers at legislative sessions, teaching “creation science” in public schools, and religious symbols on government property. Furthermore, although Scalia believed strongly in the devil, he did not care for science.

Professor Caroline Corbin has argued persuasively that Scalia’s religion clause jurisprudence is based to a large degree on his inability to see Christian privilege in America, which made Scalia’s views on the establishment clause consistent with his views on race, poverty, civil rights, and many other aspects of American constitutional law. White, male Christians were most often the beneficiaries of Scalia’s jurisprudence while all other groups were marginalized.

It is hard to imagine how the Antonin Scalia Professor of Law at Harvard or the Professors at Antonin Scalia Law School teach their female, Black, non-Christian, and LGBTQ students about these cases. Imagine the students’ shock when they learn that Scalia thought the right to vote, so long denied to Blacks, was just a “racial entitlement,” or that Scalia thought it a good idea to compare homosexual conduct to murder and then to double-down on what he dismissively and insensitively called “a form of argument.” As late as 1996, he had no constitutional problem with a government-owned-and-operated military school limiting its substantial benefits to men. He had no difficulty with the government endorsing Christianity over all other religions and non-religion. How do we expect students to react to these insults when the professor standing in the room or their own school carries the name of the man who made them?

The Republican Party still views Scalia as their hero, but that is what we would expect from a political party either hostile to or indifferent towards the issues facing people of color, women, religious minorities, and the LGBTQ community. But law schools and great universities should know better. Honoring Scalia is a testament to a white-washed 1950’s America when women were expected to be wives and mothers, gays and lesbians had to hide in the closet, racism deeply infected our politics, and Christianity dominated our country.

The myth that Antonin Scalia was a principled, great jurist is one of the most dangerous misconceptions in American politics. He thought nothing of disparaging people unlike him as well as insulting even his fellow Justices. Far from being a role model for our law students, he should be an example of how judges should not act.

The real Justice Scalia can be seen in his dissent in the Court’s landmark decision invalidating state same-sex marriage bans. He compared the reasoning of Justice Kennedy’s majority opinion to the “mystical aphorisms of the fortune cookie.” But equality under the law is neither mystical nor an aphorism. It is a constitutional requirement of the Fourteenth Amendment-a requirement Scalia ignored, distorted, and abused during his long career at the expense of most of America’s outsider groups. He should be remembered as a man who often exemplified the worst aspects of our country and our culture, not a great or even a good judge, and certainly not in any sense an American hero.