The late Antonin Scalia was a brazen bigot who did everything in his considerable power to curtail oppressed peoples’ pursuits of happiness. And yet, in many of the pieces I’ve read about his legacy, like this one by Mark Joseph Stern in Slate, writers downplay his long history of discriminatory rulings and prejudiced statements and instead focus on his supposed brilliance, his erudite writings, and his status as a unique and beguiling character who, through his unpredictability and caustic wit, made it a joy to cover the court. His unabashed hatred is downplayed as a curiosity or a colorful character trait, as something that will be long forgotten when history judges the justice as a giant of jurisprudence. Stern writes:
Memories of his regrettable prejudices will recede, and in their place will emerge the image of a titan of constitutional law, a deeply principled, sincerely dedicated man who devoted his life to the court he loved…..In my time covering the court, I’ve grown to admire the gruff, cantankerous man who lobs bombs and quips at nervous lawyers and bemused justices alike. Scalia was the justice you either loved or hated, relentlessly opinionated, representative of everything that was right or wrong with the Supreme Court. He was witty, unpredictable, caustic, indignant, and brilliant. He was an American original. And after the partisan howling over his legacy fades, that is how his country will remember him.
I’m infuriated by this apologist logic, particularly the notion that highlighting Scalia’s racism, homophobia, misogyny, and xenophobia is merely fleeting “partisan howling.” Defending human equality is not partisan. Deliberately infringing on human equality from a position of enormous power is not a forgettable transgression that can be outweighed by force of character or intellect. Yes, he was an American original, a larger than life character who leaves a lasting mark on American history. But much of that is a stain. Irrespective of his many judicial accomplishments and writings, Antonin Scalia should be remembered as a basic bigot who manipulated the law to protect the powerful and discriminate against the oppressed.
Scalia always maintained that he was an originalist, but his jurisprudence was often informed more by his rabidly conservative worldview than by a frank reading of the Constitution and its framers’ intent. Time and time again, he employed a selective, politically self-serving reading of the Fourteenth Amendment and its equal protection clause to deny the rights of women, gays, and ethnic minorities (and to uphold the rights of corporations and governments to deny the rights of women, gays, and ethnic minorities). Since most of the legal writers who cover the court seem too obsessed with Scalia’s stature and personality to reckon with his prejudice and its impact, I feel the need to highlight some of his more repugnant rulings, statements, and inconsistences. I should add that I’m not a lawyer; as such I have no appreciation for the legal ingenuity with which Scalia justified his deliberate discrimination.
Scalia the flaming homophobe
Justice Scalia reserved his most flagrant intolerance for the LGBT community. Throughout his career, he held firm in his belief that homosexuals are not deserving of the protections of the Constitution and that voters and states should be able to restrict their liberties and prosecute them for their love. For all the talk about his great mind, his repeated remarks about gays reveal a level of thinking on par with the simplest, most hateful among us.
In the landmark sodomy cases of Romer v. Evans in 1995 and Lawrence v. Texas in 2003, Scalia’s dissents vociferously defended homophobia (what he phrased as “animosity” towards homosexuality) and the right of states to imprison gays who have sex. In Romer, he equated anti-sodomy laws to anti-smoking and anti-drug laws and compared animosity towards gays to that against murderers and those who torture animals. He also equated gays receiving death benefits for their partners to longtime “roommates” receiving them, a comment suggestive of his belief that a gay couple can never be considered a real union. In Lawrence, he called gay sex “deviate” and compared laws outlawing sodomy to laws outlawing prostitution and “recreational use of heroin.” He also related gay sex to bestiality and incest, a common refrain.
In his Lawrence dissent, Scalia is not content to merely malign homosexuals. He also blasts his colleagues for letting the gays get to them:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.
Scalia’s homophobia never ebbed. Only months ago, in November 2015, he again compared gays to child molesters at a speech at Georgetown Law School. These are just a few of the myriad comparisons and attacks Scalia made against LGBT people; one shudders to imagine the hatred he spewed in private. Legal minds seem all too willing to give Scalia a pass for his rabid hatred of homosexuals. I hope and expect that history will be less forgiving.
Scalia the unoriginalist racist
Scalia happily defied his alleged originalist philosophy when it got in the way of discriminating against black people. In Shelby County v. Holder in 2013, Scalia and the Court’s politically-motivated conservative majority gutted the Voting Rights Act by invalidating long-standing provisions designed to prevent recalcitrant states with a history of racial discrimination from disenfranchising black voters (like they’ve always done). Anyone with a clue could see they were carrying water for the Republican Party, which relies in part on black voter suppression to win elections (and in turn appoint conservative Republican judges).
The majority’s contorted rationale was essentially based on states’ rights, the idea that the VRA dictated to some states but not others and therefore violated the states’ equal rights vis-à-vis one another. This is not even close to an originalist position! An originalist reading of the Fourteenth and Fifteenth Amendments—which Congress cited as its sources of power for passing the VRA—would undoubtedly account for the fact that their drafters did not believe in the concept of “equal sovereignty” of the states because, after all, they were conceived during Reconstruction, when the federal government was imposing restrictions on the southern states but not the northern ones. Nothing equal about that. In other words, Scalia and company came up with a disingenuous and decidedly unoriginalist states’ rights argument to justify states being able to once again actively disenfranchise their black voters.
Scalia routinely ruled against the equal protection of black citizens and voted to strike down and roll back many other laws designed to account for and prevent racial discrimination. He was a staunch opponent of affirmative action, integration, and racial quota laws, arguing that the government should be colorblind and not consider race at all (he stated obtusely that federal laws attempting to prevent racist outcomes against blacks exhibited the kind of thinking that produced slavery). But his blanket opposition to affirmative action is also a decidedly unoriginalist position. As Scott Lemieux writes in The American Prospect:
It is implausible in the extreme to claim that the equal protection clause was generally understood, at the time that Congress was creating the Freedman’s Bureau, as prohibiting even remedial or otherwise benignly intended racial classifications. And neither Scalia nor Thomas has even tried to make a serious historical argument to this effect. Rather, they make policy arguments or speak in abstract terms about the principle of “color blindness,” a principle that is consistent with but hardly compelled by the 14th Amendment’s broad language. The Scalia/Thomas position, moreover, is inconsistent with the central purpose of the equal protection clause: to prevent the perpetuation of a formal caste system through informal means.
Scalia’s originalism was inconsistent; his racism was not.
If this is all a bit academic for you then I’ll make things simpler. Scalia’s basic racial animus is perhaps best illustrated by his remarks last year in the affirmative action case Fisher v. University of Texas, where he basically revealed that he thought blacks were dumber than whites. In a remark that stunned the crowd during oral arguments, the justice for whom our flags flew at half-staff postulated that black students might be better off without affirmative action because they don’t do well at good schools like Texas where they are “pushed ahead too fast.” This, “as opposed to having them go to a less-advanced school…a slower-track school where they do well.”
This, in 2014! Is it really “partisan howling” to condemn such a statement? And no, the fact that he was friends and co-conspirators with Clarence Thomas does not mean he wasn’t a racist.
Scalia the five star general in the war against women
In a revealing 2011 interview with California Lawyer, Scalia stated plainly that women are not protected by the Constitution:
“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
That the Fourteenth Amendment prohibits discrimination by sex has been regularly reaffirmed for decades. Scalia’s belief that it does not was so appalling that he had to change his mind and walk back his remarks in a subsequent 2013 New York Magazine interview. But his belief is clear: women are not due equal protection under the law. Scalia took an exceptionally narrow view of constitutional and statutory protections for women. In US v. Virginia in 1996, Scalia’s was the lone vote to uphold Virginia Military Institute’s male-only admissions policy. In 1994, he voted with the majority in United States v. Morrison to invalidate the section of the Violence Against Women Act that gave victims of gender-based hate crimes the right to sue their attackers in federal court. That same year, he dissented in J.E.B. v. Alabama, which found that government prosecutors could not strike women from juries because of their gender.
Other examples abound of instances where Scalia stuck it to women on behalf of his corporate and Christian brothers. Scalia voted against a woman’s right to sue her employer for persistent pay discrimination in Ledbetter v. Goodyear Tire & Rubber Company in 2007 on the grounds that the plaintiff failed to file her claim within a 180 day window, a bigoted ruling that fundamentally misrepresents the nature of workplace pay discrimination (which builds and occurs gradually over years and years, not in isolated incidents). He repeatedly ruled to narrow Congress’ authority to pass laws to protect women against discrimination, such as his dissent over the upholding of the Family and Medical Leave Act, which gave male and female employees equal family leave. In the 2014 Hobby Lobby cases, Scalia ruled that private corporations have the religious liberty to deny their female employees’ federally mandated birth control.
Scalia was especially invested in trying to deny a woman’s right to choose, pushing his whole career, in case after case, to overturn Roe v. Wade and restrict abortion rights. Failing to do so was reportedly his “greatest regret.” In a 2014 case concerning a Massachusetts law that created buffer zones around abortion clinics to protect patients from protesters, Scalia rejected the notion that they were protesters at all, instead calling them “counselors” who want to “comfort” pregnant women “quietly and in a friendly manner.” There was some truth to that with regard to the specific plaintiffs in that case, but Scalia knew full well he was enabling the zealous lunatics across the country who throng around abortion clinics and intimidate pregnant women.
And no, the fact that he was friends with Ruth Bader Ginsburg does not mean he wasn’t a misogynist.
Scalia the xenophobe
Why not throw in a little xenophobia for good measure? He reserved the bulk of his bigotry for women, gays, and blacks, but Scalia also dabbled in discrimination against Latinos and immigrants. In Arizona v. United States in 2012, Scalia and Scalia alone voted to uphold all the nativist provisions under consideration in Arizona’s odious SB 1070 law, better known as the “papers please” law. These included (but are hardly limited to) the requirement for aliens to carry identification papers at all times and the authorization for warrantless arrests of brown people for the crime of being brown people.
Those who defend and lionize Scalia argue that he was a dedicated and principled Constitutionalist whose rulings were based on a sincere and consistent interpretation of the law. As I have argued, this is simply not true; he manipulated the law, particularly the Fourteenth Amendment, to reach his desired political and social outcomes. Consider the infamous Bush v. Gore case whereby five Republican justices subverted democracy and handed the presidency to a fellow Republican.
Scalia’s tortured, unoriginialist interpretation of the Fourteenth Amendment’s equal protection clause was that it provided only for equal protection on the basis of race, and only through colorblindness. So no affirmative action, no protection of women, no protection of gays, etc. This is an extremely narrow view of the clause. And yet in Bush v. Gore, he took an extremely broad view of the clause when politically necessary, joining the farcical opinion that the Florida recounts violated the equal protection clause because the recount procedures differed by county. Nevermind that this was completely ahistorical and inconsistent with his judicial philosophy. For Scalia, desired outcomes were more important than principles. And those desired outcomes were regularly prejudiced and disgraceful.
I could have cited 100 other examples of Scalia’s bigotry; it is and will remain a central element of his biography. I disagree with Mark Joseph Stern and those who think Scalia’s “regrettable prejudices” will be forgotten or pardoned. On the contrary, I hope and I believe that memories of his outsized personality will recede, and in their place will remain the image of a deeply bigoted and disingenuous judge who spent his career deliberately stomping on the rights of gays, blacks, women, and aliens. Good riddance.