De mortuis nil nisi bonum? Not at this site, fella.1 The late Supreme Court Justice Antonin Scalia was a conservative hero, but, to my mind, at least, he was vastly over-rated, particularly in his own mind.
To begin with, I will not be the first to point out that Nino was one of the infamous five who voted for the “hard” version of Bush v. Gore that shut down the recount of the 2000 Florida presidential ballot in order to ensure the election of George Bush, the very worst decision in U.S. Supreme Court history, the only decision ever intended not to set a precedent but rather to grant a “Get into the White House Free” card to George W. Bush and George W. Bush only—and, not incidentally, to drive a stake through that goddamned hippie Bill Clinton’s heart. Earlier in his career Scalia had famously denounced judicial activism—like the late Chief Justice William Rehnquist, he faulted decisions like Roe v. Wade and the infamous Dred Scott decision for short-circuiting the political process. But in Bush v. Gore the Court, rather than short-circuiting the political process, pre-empted it.
Scalia and Rehnquist loathed Bill Clinton and pursued him unscrupulously, pulling both Clarence Thomas and Sandra Day O’Connor along in their wake. In his last years, Scalia was driven to a similarly unjudicial fury by President Obama’s barely humane policy of tolerance towards illegal immigrants, a tolerance that was barely and fitfully pursued, yet it still enraged him, to the point that, in the 2012 decision Arizona v. United States, he blasted both the Court for ruling the “wrong way” in overturning most of that state’s noxious anti-immigrant laws and, in frenzied and entirely irrelevant and unjustified dicta, the president for not enforcing the federal laws the way Nino felt they should be enforced, effectively prejudging a case likely to come before the Court.
Scalia is famous for, among other things, virtually demolishing the use of “legislative intent”—statements by congressional committees and individual senators and representatives about the meaning of a law—to interpret legislation. Congress, Scalia argued, gets one bite of the apple—the text of the law itself. Whatever they want to say they must say in the text of the statute itself. But his approach to interpreting the constitution—“originalism”—was the precise opposite. Here it was not merely desirable but absolutely necessary to determine the original thinking and intent of the authors of the constitution and its amendments. This led him, unsurprisingly, to question the validity of Brown v. Board of Education—“unsurprising” because so many conservatives find a way to do it—since it is not hard to demonstrate that most if not all the individuals involved in passing the “Civil War” amendments, while opposed to slavery, were still racist in much of their thinking and accepted without question the notion that legislatures could make some legal distinctions purely on the basis of race.
Adam Liptak, in his obituary for Scalia in the New York Times, provides some statements by Scalia “explaining” why, though Brown v. Board of Education seems like a good decision, it is actually fruit of a poisonous tree:
‘“Don’t make up your mind on this significant question between originalism and playing it by ear on the basis of whether, now and then, the latter approach might give you a result you like,” Justice Scalia said.
‘“Hitler developed a wonderful automobile,” he went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test. The test is over the long run does it require the society to adhere to those principles contained in the Constitution or does it lead to a society that is essentially governed by nine justices’ version of what equal protection ought to mean?2”’
Some people might object to comparing the Warren Court to Adolph Hitler, and Brown v. Board of Education to the pre-war Volkswagen, which never went into production. One can also wonder how Scalia managed to endorse the Court’s decision in Loving v. Virginia, overturning that state’s ban on inter-racial marriages, an issue nicely dissected by Ed Brayton, other than that he feared enraging Justice Thomas, who would not have been able to live in pre-Loving Virginia with his wife (also named “Virginia”).
Liptak’s article points out Scalia’s amusing relationship with the famous/infamous issue of “substantive due process”—the extent to which the 14th Amendment’s statement that “nor shall any state deprive any person of life, liberty, or property, without due process of law” not only requires states to follow “due process” but also allows the Supreme Court to overturn legislation that interferes with “life, liberty, or property”. Notions of substantive due process were first used by conservative Courts to overturn state and federal laws offensive to the propertied classes and then, following the New Deal, by liberals to pursue their own agenda. Scalia own doctrine seemed to be “I never use substantive due process unless I can’t get the result I want without it,” flimsy reasoning indeed, if indeed it can be called such at all.
As for the famed Scalia wit, well, I call it, for the most part, rudeness and self-indulgence. It is easy for judges to be bullies, and even easier for Supreme Court justices.
I have subjected Scalia to frequent beatdowns and occasional praise over the years, and they can be found here. Over at Reason, Jacob Sullum points out that Scalia didn’t always get it wrong, and sometimes got it right when the Court’s “liberals”, who have never impressed me much, did get it wrong.
Scalia was, very proudly, a traditional Catholic and fancied himself the scourge of the secularists, arguing, among other things, for the right of legislatures to uphold morality and punish such offenses as “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity,” a list that always puzzled me. What about gluttony? That’s a mortal sin, whereas masturbation and fornication are only venial ones. Afraid to look in the mirror, Nino?
