One of my most satisfying memories is of picketing Antonin Scalia when he spoke at the University of Wisconsin in March 2001. Our then small staff, my mother Anne Gaylor, Dan Barker and our assistant editor Liz Wayne, joined other impromptu picketers outside the law school on a very cold day. I held a sign proclaiming “Scalia — Fugitive from Justice.” My mother, at 75 someone who had advocated for abortion rights and feminism for 35 years, held a sign reading “Scalia Supremely Sexist: Protect Abortion Rights.” Dan’s punny sign read “Scalia: Supreme Court INJustice.”
As far back as 2001, we pointed out that Scalia was a judicial version of a bible literalist. He thought of the U.S. Constitution as a literal believer thinks of the bible.
Antonin Scalia’s legal reasoning had more holes in it than a good Swiss cheese. His judicial decisions were blinkered by his religious beliefs. Scalia was the most outspoken of the gang of five conservative Roman Catholics on the Supreme Court (with liberal Sonia Sotomayor comprising the sixth Catholic until Scalia’s death last weekend). Faith short-circuited Scalia’s reasoning. Scalia dressed up the old “states’ rights” arguments in the bizarre new clothing he termed “originalist” interpretations of the Constitution.
In remarks during two Wisconsin university appearances in 2001, Scalia decried the idea of the Constitution as a living document:
“A dead Constitution — that’s what I’m selling,” Scalia told a closed audience March 15 at the University of Wisconsin Law School. He said his mission was to persuade them “to love a dead Constitution.”
According to coverage in The Capital Times, Scalia hinted that he would not find a constitutional right to women’s suffrage under the Equal Protection Clause of the Constitution, saying only the 19th Amendment passed in 1920 provided that right.
Scalia added: “If you don’t like the white males, persuade the people and lead a revolution. And you’ll get beat, too.” Scalia called himself an “originalist” or “textualist,” saying judges must preserve the original meaning of the Constitution, in force since 1789. It provides no right to die, no right to an abortion and no ban on the death penalty, he said. By implication, he appeared to believe there is no constitutional right to contraception.
“The death penalty — that’s a laugher. Right to die — forget about it. Right to abortion — the same thing,” the Wisconsin State Journal quoted him as saying.
Scalia seemed to dismiss the broad liberties provided in the Bill of Rights: “The majority wins. If you don’t believe that, you don’t believe in democracy.”
He never deviated from these views: “The Constitution . . . means today not what current society, much less the courts, thinks it ought to mean, but what it meant when it was adopted.”
Scalia was valedictorian at his Jesuit prep school. He worshiped at a suburban Virginia parish popular with conservative Catholics, which erected a monument to “unborn children” to symbolize opposition to abortion. He sired nine children.
President Nixon in 1971 gave Scalia his first political appointment. President Reagan appointed him to the U.S. Court of Appeals for the District of Columbia in 1982. Four years later, Reagan nominated him to the Supreme Court.
Scalia became an outspoken opponent of affirmative action in the early 1980s. His dissenting votes upheld prayer at public school graduations. He wrote the majority opinion in the 5-4 Bush v. Gore decision handing George W. Bush the presidency in 2000.
Reviewing Scalia’s theology-tainted views made my blood run cold. In a 2004 CNN interview, he cavalierly said torture wasn’t “punishment” and therefore couldn’t be considered “cruel and unusual.”
In a revealing interview in New York magazine, Scalia implied that the existence of atheists proves the existence of the devil. He said, “I even believe in the Devil. Of course! Yeah he’s a real person. Hey c’mon, that’s standard Catholic doctrine. Every Catholic believes that.” Scalia offered as proof of the devil: “What he’s doing now is getting people not to believe in him or in God.”
In his dissent in the McCreary case, which barred a Ten Commandments display inside a Kentucky courthouse, Scalia wrote: “With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”
Dissing Establishment Clause
As recently as Jan. 2, Scalia said the Constitution does not require religious neutrality.
In so many ways, Scalia held medieval views. He dissented in a Louisiana case striking down a law that required “equal time” for creationism if evolution is taught. Pretending to be a scientist, he termed evolution “a guess, and a very bad guess at that.”
He dissented in Lee v. Weisman, in which the majority, led by Justice Anthony Kennedy, ruled against prayers at graduation ceremonies. Scalia sniffed, “To deprive our society of that important unifying mechanism in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation is as senseless in policy as it is unsupported in law.” (In Scalia’s rush to exclude nonbelievers, it must have escaped his notice that the plaintiffs were Jewish, unless in his arch-Catholic views that made them “nonbelievers.”)
“The First Amendment explicitly favors religion,” Scalia wrote in his dissent to the court’s decision to refuse an appeal in Elmwood School District v. Doe (a case in which the high court declined to review a decision by the 7th Circuit U.S. Court of Appeals’ ruling against a school district holding graduations in a church).
Scalia was so injudicious that he frequently put his foot in his legal mouth. Over his three-decade reign, he periodically had given speeches (usually to Catholic schools or crowds) that revealed serious problems about his ability to dispassionately hear controversial cases. In January 2003, he gave a speech alluding to the 9th Circuit decision ruling in Michael Newdow’s favor against the religious Pledge of Allegiance as a prime example of how courts misinterpret the Constitution. At a Knights of Columbus rally in Fredericksburg, Va., he said the framers didn’t intend to “exclude God from the public forums and from political life.” To his great credit, Newdow managed to get Scalia to recuse himself from hearing the challenge to “under God” in the pledge, based on those remarks.
Dissing gay rights
Scalia wrote four dissents against in cases considering equal rights for gay persons, employing offensively intemperate language. In Lawrence v. Texas (2003), in which the court overturned a Texas law barring sexual relations between consenting adults, he excoriated “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. . . . 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.”
His views didn’t evolve on gay rights like those of most Americans. In a recent speech castigating the majority decision in Obergefell v. Hodges, he said the court’s logic in legalizing same-sex marriage could as easily apply to special rights for child molesters. U.S. Circuit Court Judge Richard Posner has dissected a host of other shocking legal positions Scalia took.
Likewise, he made racially condescending arguments in recent oral arguments.
Death penalty cheerleader
Scalia as a justice inflicted or attempted to inflict great harm on women and gays, citizens he demoted in favor of corporate rights. But perhaps the class he was most callous about was prison inmates, especially those on death row. Scalia dissented in a case that ruled “the retarded” shouldn’t receive the death penalty. Putting to death juveniles wasn’t cruel or unusual, he said in a dissent.
In the 2014 CNN interview, he reiterated his view that our “dead” Constitution barred our nation from abolishing the death penalty.
It’s become somewhat of a legal cliché to praise Scalia as brilliant and witty. I confess I never saw it, and not just because I disagreed with him. He seemed aggressive, arrogant and domineering. His words and rulings were often ugly. It’s truly nice that he and Justice Ruth Bader Ginsburg were warm friends in private life while adversaries publicly. It’s also nice that that he apparently died in his sleep after a day doing something he loved.
But as a Supreme Court justice, he won’t be judged based on collegiality (which did not extend to his relationship with Sandra Day O’Connor) or supposed witticisms. We’ll be judging him on the consequences of his judicial words and actions.
One is cautioned not to “speak ill of the dead.” But while Scalia was alive, he often spoke ill of the living, and that included our “living” Constitution. Perhaps it should be listed in his obituary as among his survivors.