My Thoughts on the Life and Death of Supreme Court Justice Antonin Scalia
By now, you are no doubt aware that Supreme Court Justice Antonin Scalia passed away unexpectedly in his sleep. At 79 years old, in generally good health, and seemingly as sharp as ever, the news came out of nowhere. It immediately sent ripple waves through the political establishment and most assuredly altered the direction, debate, and tone of the upcoming Presidential election. In fact, I’d argue that, given the timing and current administration in the White House, it very well may be one of the most consequential political events of the past quarter-century. The typical American likely has no comprehension of how much his or her life just changed. The effects of this will be felt for generations.
That is a different discussion for another time. What I find interesting is the immediate, visceral reaction people are having to Justice Scalia’s death. It demonstrates one of the reasons politics, especially in an age of mass communication, has become so divisive. The reaction on the Republican side is to paint Scalia as some sort of paragon of virtue; a flawless saint who has passed away and whose absence now forebodes the approach of the forces of darkness. Meanwhile, on the left, he is being demonized as a monster; individuals celebrating as if Sauron himself has fallen from power and peace will return to The Shire.
Neither is the truth. Beware those who would convince you he was a saint or villain; who wish to oversimplify the world by shoving his legacy in a reductive framework that allows them to sort people into good or bad, this team or that team. To paint Antonin Scalia as a conservative or a partisan is a grave injustice to both the facts and his record. He was much more. Sometimes for better, sometimes for worse.
He was a brilliant legal scholar.
He was an extraordinarily gifted writer.
He was an opera lover.
He was a first-generation American, the son of Italian Immigrants. He was the first Italian American appointed to the Supreme Court.
He was a beloved man with a witty sense of humor who developed lifelong friendships that cut across religious, political, and gender lines.
Yes, it is true that, at moment and in certain areas, he was a recalcitrant, non-apologetic, and even embarrassingly gleeful bigot who used his influence to support policies that had the effect of harming, degrading, and destroying the lives of those he disliked.
Yes, there were times when he allowed his personal ideology to influence decisions in a way that were not consistent to his articulated framework of rigid originalism; when he betrayed his own best ideals to legislate from the bench.
Nevertheless, it is an indisputable fact that there were many occasions, over many decades, when he was the deciding vote standing between us, the citizens of the United States, and an over-reaching government agency or official seeking to strip us of our rights, tag us like animals, track our every movement, invade our homes, imprison us without a trial, take away our right to self-defense, limit our freedom of speech, or refuse to allow us the counsel of an attorney.
There were many times when he lost, warning us of the dangers of what the court has done, whether it be providing carte blanche approval to wealthy developers who wanted to steal land from the poor under the guise of economic revitalization or making it possible for a genetic database to be built and used against us.
Like a sentinel, he and his gavel more often than not defended the rights and values that were won through bloodshed; the rights and values for which parents, siblings, spouses, and friends died on battlefields in hellish conditions so that one day we could escape the madness of kings or the edicts of dictators.
Despite my considerable disagreements with him on certain topics, my increasing frustrating with his willingness to discard his own principles if it meant winning a specific battle as he grew older, and my steadfast condemnation of his horrific treatment of many of his fellow citizens, including me and my husband as we both suffered directly, and deeply, at his hand, on the balance, a fair reading of the record shows that his life was one of admirable service to the republic. In the final analysis, I believe we are all richer because of it, flaws and all. Even when he was wrong, he forced his opponents to become better; to think more clearly, to hone their arguments, to understand the theoretical foundation upon which their position was built and defend it against often well-reasoned assault.
What I Believe Justice Scalia Did Right – And How All Of Us Benefited from It
When President George W. Bush and his Defense Secretary, Donald Rumsfeld, used the military to brand American citizens “enemy combatants”, capture them, detain them, hold them without a trial, refuse to grant them access to an attorney, and deny them the other benefits of Due Process guaranteed by the 5th Amendment, Justice Scalia joined with liberal Justice Stevens in a plurality opinion dissent warning of the dangerous ground on which citizens now found themselves; that the government was claiming it had the extraordinary right to effectively imprison a citizen accused of treason but never bring them into a courtroom, never let them prove their innocence, never confront the evidence against them, all because they were declared enemies of the nation. He condemned the mere notion, comparing it to the similar practices of English royalty, which had used such tactics making these protection guarantees by our ancestors necessary in the first place. [You can listen to the oral arguments and hear him reading his dissent from the bench in the case, Hamdi v. Rumsfeld, here. You can read the opinions in HTML or PDF here.]
When the government argued it had a right to use thermal imaging technology to scan an American citizen’s home in the middle of the night to try and use heat signature patterns through his walls without a warrant in an attempt to figure out if he was growing marijuana – a series of events that sounds like something out of an Orwellian plot – Justice Scalia joined with Justice Thomas and liberal Justices Breyer, Ginsburg, and Souter in a 5-4 decision, striking down the practice by declaring it an effective search under the Fourth Amendment; that prior, probable cause must be demonstrated before such an invasion could take place. He declared that not only was there a firm line at the entrance to a person’s house that the government could not go beyond without probable cause and due process, but a bright line. [You can listen to the oral arguments and hear him reading his majority opinion from the bench in the case, Kyllo v. United States, here. You can read the opinions in HTML or PDF here.]
When the government argued that it had a right, without a warrant or the ability to demonstrate probable cause, to attach an anonymous GPS device to a citizen’s car for months, monitoring his every move in an attempt to gather evidence that would later be used to charge him, Justice Scalia joined with the other justices to strike down and forbid the practice saying it was an effective illegal search under the 4th Amendment. [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, United States v. Jones, here. You can read the opinions in HTML or PDF here.]
When the government argued that it had a right to bring drug sniffing dogs to a person’s front door without a warrant, based on nothing but an anonymous tip, and then use the dogs’ reactions as probable cause to secure a warrant for the purposes of breaking in, searching for evidence of a crime in hopes of prosecuting the homeowner, Justice Scalia and Justice Thomas joined with liberal Justices Ginsburg, Sotomayor, and Kagan, taking a proverbial 2×4 to the back of the practice, condemning it a gross abuse of power that could not be tolerated under the 4th Amendment protections against illegal search and seizure. [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, Florida v. Jardines, here. You can read the opinions in HTML or PDF here.]
When the government argued that it had a right to arrest a person, then, without a search warrant, rifle through his cell phone looking for photographs, emails, text messages that could provide evidence of crimes, including those unrelated to the crime for which he had been charged without prior probable cause, Justice Scalia joined with the other justices forbidding the practice by declaring that it amounted to an illegal search and seizure under the 4th Amendment. Their command to police departments was crystal clear when they ordered them to, “Get a warrant.” To summarize the court, the fact that many of the privacies of life now fit in in a device you can hold in your hand rather than on papers in a desk drawer at home did not change the basic protections afforded by the Constitution. [You can listen to the oral arguments and hear Justice Roberts announce the majority opinion from the bench in the case, Riley v. California, here. You can read the opinions in HTML or PDF here.]
When the government argued that it had a right to submit evidence to a court certified by forensic experts, and not produce those forensic experts so the defendant had a chance to confront his accuser at trial and subject him or her to cross-examination in front of a judge and jury, Justice Scalia and Justice Thomas joined with liberal justices Stevens, Souter, and Ginsburg to force prosectors to reverse course, telling them it didn’t matter if it was inconvenient or increased their workload, they had an obligation to honor the 6th Amendment rights of the defendant. [You can listen to the oral arguments and hear him announce the majority opinion from the bench in the case, Melendez-Diaz v. Massachusetts, here. You can read the opinions in HTML or PDF here.]
When the government argued that political demonstrators had no right to burn an American flag as an expression of free speech, that it had the right to criminally charge, fine, and imprison Americans who disrespected the symbol of the country because doing so offended many citizens, Justice Scalia joined with Justices Brennan, Marshall, Blackmun, and swing vote justice Kennedy to strike down laws in 48 out of 50 states because he recognized that you cannot elevate a symbol of freedom above the freedom itself. In the opinion he joined, the Court stated, “The Government may not prohibit the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable, even where our flag is involved. Nor may a State foster its own view of the flag by prohibiting expressive conduct relating to it, since the Government may not permit designated symbols to be used to communicate a limited set of messages. Moreover, this Court will not create an exception to these principles protected by the First Amendment for the American flag alone.” [You can listen to the oral arguments in the case, Kennedy v. Texas, here. You can read the opinions in HTML or PDF here.]
When the government prevented a defendant in a criminal trial from using the paid defense attorney of his choice, going so far as to have a Federal marshall sit between them in a courtroom to stop them from communicating, Justice Scalia sided with liberal Justices Stevens, Souter, Ginsburg, and Breyer in a 5-4 decision that guaranteed those tried with crimes had the right to select their own attorney. [You can listen to the oral arguments and hear him deliver the majority opinion from the bench in the case, United States v. Gonzalez-Lopez, here. You can read the opinions in HTML or PDF here.]
When the government attempted to ban the sale of video games it believed were too violent for minors to play, Justice Scalia joined with swing vote Justice Kennedy and liberal justices Ginsburg, Sotomayor, and Kagan in ruling that video games are a form of speech entitled to 1st Amendment protections; no different than books, plays, movies, and music. [You can listen to the oral arguments and hear him deliver the majority opinion from the the bench in the case, Brown v. Entertainment Merchants Association, here. You can read the opinions in HTML or PDF here.
When the government insisted it had a right to regulate Internet content including effectively banning nudity, pornography or otherwise offensive material that were considered indecent by community standards in an attempt to protect citizens under the age of 18 from accessing it, doing so in a way that would have made it extremely difficult for consenting adults to produce, share, or distribute the content with each other despite having a legal right to do so, Justice Scalia joined with the court in striking down the law, the Communications Decency Act of 1996, in part because he and the other justices worried that the term “indecency” wasn’t defined; a purposely vague concept that could lead to the government suppressing any materials or speech it found offensive. [You can listen to the oral arguments in the case, Reno v. ACLU, here. You can read the opinions in HTML or PDF here.]
When the government insisted it had the right to seize the crops of farmers without fair compensation for the purpose of artificially inflating commodity prices and stabilizing the raisin market, a clear violation of the 5th Amendment protections against such abuses, Justice Scalia joined with many of his fellow Justices to strike down the illegal theft. I wrote about this case, Horne v. Department of Agriculture, when it happened. It’s complicated and involves second- and third-order economic consequences but, when all is said and done despite the damage the ruling could cause to the raisin industry, I consider it a win for individual freedom. [You can listen to the oral arguments here. You can read the opinions in HTML or PDF here.]
On and on it goes. When the government attempted to strip citizens of the right to bear arms, Justice Scalia consistently struck down the unconstitutional intrusions saying that if people wanted it changed, they needed to repeal the 2nd Amendment. When anti-gay activists ran to the court begging not to have their names released to the public under fear of being harassed or losing their jobs, he told them to grow a backbone; that our founders voted in public on colored cards so everyone knew where they stood, and all but condemned them for their lack of “civil courage”, scolding them by stating that if they wanted to legislate – which is what a proposition is – especially in a way that changed the rights their neighbors, colleagues, and friends enjoyed, they had to deal with the consequences of doing something that ticked off others as it was an inextricable part of freedom of speech.
Two Cases Justice Scalia Lost That I Wish He Would Have Won
Out of all of his cases Justice Scalia heard between 1986 and 2016 when he sat on the high court, two of my favorite, which make me admire him most, involve rulings he lost.
In Maryland v. King, Justice Scalia joined with liberal Justices Ginsburg, Sotomayor, and Kagan in a 5-4 dissent. The government had insisted that it had a right to book someone for a crime, take a DNA swab to gather their genetic information, then use that DNA record to check all other crime scenes, past, present, and potentially future, even without probable cause or a warrant. The conservative majority agreed, establishing what I believe to be one of the most potentially catastrophic precedents in Supreme Court history.
Justice Scalia was so infuriated with the majority opinion, he read his dissent from the bench, warning his fellow citizens that, “because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason”. The implications and dangers are clear to anyone who is a student of history; who knows how previously democratic countries can devolve into fascism and previously well-intended databases suddenly are used for genocide or political manipulation. Scalia knew that letting off an occasional criminal who otherwise would have been caught by the unprecedented dragnet was worth the price of not subjecting us all to effectively unrestrained search by those in power. [You can listen to the oral arguments as well as him reading his dissent from the bench here. You can read the opinions in HTML or PDF here.]
In Kelo v. City of New London, Justice Scalia joined with the minority, which decried the use of eminent domain authority to force one private land owner to sell his or her home or property to another private landowner solely for the purpose of economic revitalization. The idea that a corporation or rich real estate developer could come along, make a deal with local politicians, and effectively force longtime homeowners from their houses to build a new corporate headquarters, shopping mall, or casino struck him as profoundly un-American; a violation of everything that the founding fathers held dear. In Justice O’Conner’s dissent, the losing side lamented this was merely a way for the wealthy and powerful to get whatever they wanted at the expense of their less fortunate neighbors as they now had no need to respect private property traditions, saying, “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own.” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).” [You can listen to the oral arguments here. You can read the opinions in HTML or PDF here.]
What I Believe Justice Scalia Got Wrong – And How We Were All Harmed By It
In reviewing Justice Scalia’s record, and having watched him for nearly my entire life, I find myself coming to the same conclusion as Republican Economist, Professor, and Federal Appellate Judge Richard Posner. Justice Scalia was far from objective and anything but impartial when it came to certain topics. He would throw out his own ideals in a heartbeat and replace them with raw, practically unrestrained, seething contempt and prejudice whenever it suited him. Judge Posner basically concludes that Justice Scalia’s legal framework, in many cases when it enters an area where he holds a deep, generation and cultural prejudice, amounts to theocratic majority rule. It worked fine as long as you were a member of the dominant race, dominant religion, and dominant sexual orientation but God forbid you weren’t as the Constitution, in Scalia’s worldview, offered you no safe harbor from the abuse of your fellow citizens.
You are aware of my own experience in one of these areas as someone who was a member of a class targeted by Scalia. I’ve shared it in the two most personal posts I’ve ever written, here and here. Most of you know that, had Justice Scalia’s vision of America prevailed, you would not be reading this blog right now. You would not know my name. Anything and everything you’ve learned from my writings would not exist as I would not have wanted to draw attention to myself. Throughout his career, he consistently worked to make life an utter, living hell for people like me, casting aside any thin veneer he had for the rule of law or constitutional principles in doing so. People who are younger than their early thirties probably cannot fathom the damage he did and the role he played in demonizing gay people over the past three decades. He contributed in a major, substantial way to a culture that resulted in a disproportionate amount of young men, 10, 11, 12 years old coming home from school, going to their rooms, and blowing their brains out or hanging themselves in their closet as their parents cooked dinner. If you doubt it, go read his legacy as it pertains to civil rights. It’s as bad in this area as men like George Wallace were on race, stepping far outside of any constitutional framework that can be supported.
Back in the 1990’s, after several communities in Colorado decided they wanted to offer basic protections to gay people – the right not be fired from a job or thrown of an apartment, for example – the religious right became enraged. It mobilized and got a ballot initiative passed called Amendment 2, which it then planned on using as a model to replicate in other states across the country. This particular state constitutional amendment was breathtaking in scope. In the words of the 6-3 majority that struck it down, Amendment 2, “prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class”, before it then goes on to quote the amendment itself, which states:
“No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self executing.”
Amendment 2 quite literally made it illegal for anyone, gay or straight, Republican or Democrat, rich or poor, male or female, young or old, to vote to offer any protections or benefits, on any level of state or local government, through any agency or branch of the government, to gay people. Justice Kennedy, who delivered the majority opinion, expressed disbelief at the extent of the animus involved. It’s hard not to agree with him when you go back and look at the election. The purpose of the amendment, especially if you were around during the time it was being passed, is clearly pure, raw, untethered hatred akin to certain laws in the South that had targeted black Americans or certain laws in twentieth-century Germany targeted at religious, cultural, and/or hereditary Jews.
Justice Scalia wasn’t having it. In his dissent, he described this extraordinary rescission of democracy which, under any other condition he would eviscerate, as, and I quote with emphasis, “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws”. But he didn’t stop there. Justice Scalia went so far as to say that even if a gay person were single and celibate, it would still be acceptable to deny him access to democracy simply because he was tempted to fall in love with another man. Again, I quote so there can be no misunderstanding of how extreme his position was, “If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual-orientation is an acceptable stand in for homosexual conduct.”
Seven years later, in one of the most famous cases in the history of the United States Supreme Court, Lawrence v. Texas, Justice Scalia again found himself on the losing side in a 6-3 decision, unleashing a torrent of attacks in his dissent. [You can listen to the oral arguments and opinion being handed down from the bench here. You can read the opinions, including Scalia’s dissent, in HTML and PDF here.] The case involved police officers entering the private home of a gay person on an unsubstantiated tip from a neighbor who lied and claimed a black man was waiving a gun to give the cops reason walk into the residence. The police officers discovered the man in his bedroom, engaged in sexual activity with an on-again, off-again boyfriend. He was arrested and pled guilty to the crime of “homosexual conduct”. The neighbor was charged with filing a false police report and pled no contest but was let out of jail in less than a month.
Scalia made known that he believed that the government had the authority to prohibit two consenting adults from engaging in a sexual act for no reason other than expressing disapproval; that even if the prohibition were irrational, it didn’t matter because the laws were justified by the fact that enough people found gay folks disgusting. Of course we can throw them in jail. Of course we can fine them. Of course we can take away their rights. If that weren’t enough, he gave some indication that he believed it was perfectly fine for the court to say that it would be unconstitutional to prevent a man and his girlfriend from having oral sex (that might be worth protecting) but if a man and his boyfriend did it, they could be criminally charged as society expressed its disdain for them because – I kid you not – it wasn’t really discriminating against gay people as gay people were treated exactly the same as straight people. That is, if a gay man wanted to have oral sex, he could simply do it with a woman. Problem solved in Scalia’s mind; no discrimination. The fact that it is akin to telling a Baptist in Uzbekistan he has freedom of religion because he can read the Quran and attend mosque to worship Allah, and therefore no religious discrimination exists, seems to be lost on him.
That wasn’t enough, though. Justice Scalia quoted his own Romer dissent, saying, “I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct”, going on about how it was abhorrent to treat people like they were bigots simply because they wanted to discriminate against people. He feels the need to defend this point of view, because, in his own words, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” Lest you be under the impression, he makes a point of assuring the court that he has “nothing against homosexuals”. Had it been a generation prior, he would have been saying the same thing about segregation.
Last year, in the Obergefell v. Hodges decision that legalized marriage equality in all fifty states [listen here, read here] , Justice Scalia once again found himself on the losing side, apoplectic at his inability to stop the court from striking down the remaining marriage bans. His dissent is as scathing as one would expect, his gift for words perversely twisted into a weapon to demean an entire group of people whom he would be perfectly willing to let die alone in the hospital, be evicted from their home, force to pay inheritance tax, be denied Social Security benefits, and 1,400+ other advantages under the law; a group of people for whom he as perfectly willing to disregard the full faith and credit clause of Constitution when one state, having passed marriage equality through its elected representatives and governor, had a married citizen who traveled through, or moved to, another state, betraying his much-loved originalism and proving once again that there was no bigger framework involved. He expresses offense at the idea that opposition to equal rights for gays “cannot possibly be supported by anything other than ignorance or bigotry” all without ever being able to actually articulate a single example, instead repeatedly resorting to a logical fallacy called an appeal to tradition. One can imagine him on the Court at the time of Plessy v. Ferguson [read here] defending the abhorrent decision as being common sense. Incongruently, in interviews at the same time, he was imploring the audience not to think of him as anti-gay or homophobic; something I find interesting.
Sadly, if history is any guide, his position on this one issue will likely be one of the only things for which he is remembered despite the sentiments to the contrary by his colleagues. Scalia’s America is one in which any member of any type of minority finds himself or herself utterly helpless against the tyranny of the majority unless somehow, someway, Antonin himself might have experienced the discrimination so he could empathize with it. We’ve seen this pattern played out in the past. He hurt too many people, and inflicted too much damage, along the way to have anything else stand out in the rearview mirror, especially once the current generation of older Americans has died. If you have any doubt, look at the difference in reaction about his passing on a Twitter, which skews younger, compared to Facebook, which skews older. Millions of people on Twitter were in jubilation at his fall off the mortal coil.
I Still Find Scalia’s Life, and a Majority of His Constitutional Legacy, Worthy of Praise
With that said, despite the direct damage he caused me and my family, and despite many other occasions on which he was less than consistent (and there were quite a few demonstrating his willingness to legislate from the bench whenever it suited his needs but it would require tens of thousands of words and back explanation – his behavior in the Bush v. Gore case was particularly abhorrent and self-serving [listen here, read here]), I cannot help but be thankful for the things he did right; for the times he stood between us, the citizens, and the government and said, “You shall not pass.” True, his life was not perfect. Yes, his values were sometimes unduly influenced by the cultural biases of his age, even when that caused him to be an agent of discrimination and hatred or twist around his own, past interpretations of the Constitution. Despite that, Justice Scalia was to some extent a firewall; a protective shield that kept out a lot of bad thinking from the heart of the republic and made it stronger. To overlook those decisions, and that good, would be both intellectual malpractice and a moral failing. I can condemn him in the areas in which he was wrong but celebrate the areas in which he defended us, his fellow citizens. I can be relieved that marriage equality is now more secure and worry that other protections may now be more vulnerable.
More than anything, in this moment, as I sit in a reading chair by a fireplace in my home at 3:32 a.m. on this cold winter night, my heart breaks for his wife, nine children, and twenty-eight grandchildren. His death has no doubt left a void in their lives that will be missed far more than the space he’s left on the nation’s legal and political landscape; especially Maureen. For 56 years, they were married. For 56 years, they built a life together. Aaron and I are already approaching 20 years since we first met as teenagers and when I think about the idea of waking up to a world without him in it, I can hardly breathe. I imagine the pain she is feeling is something that never fully heals but is only endured. That is what we, as humans, do, just as our fathers and mothers, and their fathers and mothers before them, did. The best for which we can hope is to leave behind a record of a life well-lived; a life worthy of emulation.
In many respects, Antonin Scalia did precisely that. Through his writings, speeches, and interviews, he made me a better thinker. He forced me to challenge the framework from which I approached constitutional law. He helped me discover what it is I believe and the reasons I believe it. In doing so, he made me a better man and a better citizen.
For that, I will always be grateful.