The Revenant
When God Visits

Antonin Scalia

Antonin Scalia is the only Supreme Court Justice I've personally encountered.  In February 1992, six years into his tenure and when he was still among the junior members of the Court, I was representing Oklahoma in the United States Senate Youth Program funded by the William Randolph Hearst Foundation.  We spent a splendid week in D. C. meeting with and hearing from government officials and touring behind-the-scenes in places like the State Department.  Among the highlights of the week was our presentation from and question and answer session with Justice Scalia in the Supreme Court chamber.  Afterwards, a Hearst reporter along for the ride said something like, "Most journalists crave a chance for a q&a with a justice like you high school students just had."

Scalia was sharp, brilliant, funny, and charming.  Passionate about the law and about conveying appreciation for the Constitution and the rule of law to us students.  I enjoyed him.  My, albeit limited, personal experience chimes with the beautiful reflection that liberal scholar Cass Sunstein offered this week about his friendship with Scalia.

But.  And the but is big.  Scalia's jurisprudence was harmful to people and maybe damaging to the Republic.  As Jedediah Purdy explains in this piece from The New Yorker.

My disenchantment with Scalia began with Bush v. Gore.  At the time I was completing my Ph. D. in philosophy at the University of Oklahoma and the debacle of the Florida election was a constant topic of conversation in the department lounge.  The liberals (of whom I was not a part, being one of the few people in the department who had voted for Bush) were worried that the Supreme Court could decide the election, cutting short the messy, democratic process.  I said, "That won't happen.  Justice Scalia, for instance, knows that the House of Representatives must settle presidential election disputes and will refuse to insert the Court."

Upon reflection, the final 5-4 ruling in Bush v. Gore (remember there was first a 9-0 ruling and then a 7-2 ruling as well) may have been the beginning of the end for my time as a conservative and a Republican.

As Purdy explains in his piece, Scalia's originalism did not resolve partisanship but masked it, which did become apparent when Scalia was no longer writing dissents.

So, another example is D. C. v. Heller, in which Scalia, without precedent, interpreted the Second Amendment as protecting an individual right to bear arms instead of a right of the state militias.  Justice Stevens' dissent (one of his best and most eloquent) was, to me, a far more convincing originalist argument.  He demonstrated persuasively that the 18th century meaning of the amendment was connected with the militias not an individual right.  The best persuasive evidence being the existence at the time of laws limiting and regulating individual gun ownership.  To me that case revealed the hypocrisy in Scalia's jurisprudence and, as Purdy pointed, out, originalism simply became a different form of partisanship instead of the way out of it.

Then, in Citizens United the Court, again, without precedent, granted rights to corporations.  As Purdy writes, "Much of his jurisprudence protected the powerful, such as corporations with money to spend on elections, and white plaintiffs against affirmative action."  Scalia could find no Constitutional principle for granting legal protections to harmed minorities--gays and lesbians for instance--but could invent legal protections for corporations.

And, then the deal was sealed in the Hobby Lobby case.  For years as the religious exemption discussion swirled around contraception and gay rights I kept quoting Justice Scalia in the Peyote case from the early 1990's: "The right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability."  He thought that carving out religious exemptions to neutral laws would be a horror-- "any society adopting such a system would be courting anarchy."

And, yet, when it was a conservative corporation making a case that also would impact exemptions from neutral laws for Roman Catholics (of which Scalia is one), Scalia overturned his own precedent.  To me, that was the final straw.  His jurisprudence was inauthentic and harmful to people and the Republic.

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

James Nimmo

I don't "celebrate" Scalia's death. I'm sad he was on the Supreme Court in the first place. He was vindictive towards gay people, women, and blue collar workers. He insisted on weaving his private religious beliefs into the public rulings of the Supreme Court. Those rulings have the force of law, thereby weakening the separation of church and state, besmirching the "originalist" theory he claimed was his guiding force. What did he not understand about the original language of the first clause of the First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof


His originalist theory was camouflage for his objection to progress in the recognition by the law of minorities he didn't like. Scalia would have been right at home during the Spanish Inquisition. We gay people were the targets of his own Inquisition.


http://www.motherjones.com/politics/2013/03/scalia-worst-things-said-written-about-homosexuality-court


Kate Rohde

This became my view of Scalia -- ie. He moved from principle to partisan advocacy, but I appreciate the thoughtful documentation you have done.

Bud Cassiday

Justice Scalia was one of those who gave us President GW Bush after the Supreme Court ordered Florida to stop counting the votes in Bush v. Gore --- which gave us Iraq II, the financial crash, the great recession, trillion $$$ budget deficits, and the Koch brothers. I'd say the man had an impact.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been posted. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Your Information

(Name and email address are required. Email address will not be displayed with the comment.)