Monday, August 16, 2021

The Justice Scalia Mythology that Still Haunts our Politics and our Law

 By Eric Segall

Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still severely impact our politics and our law. Not long after his death, George Mason University received a large sum of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School. Recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law position. While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint. There is even a play written about Scalia which was performed in the shadow of the highest Court in the land.

These lavish testaments to the late Justice are deeply insulting to women, people of color, LGBTQ folks, and non-Christians, as well as dangerous perpetuations of the fiction that Scalia was a Justice worth honoring. What Scalia stood for the most was the privileging as a matter of law of antiquated and unjust legal traditions, favoring white males over outsider groups, and allowing the government to treat the religious over the secular under the establishment clause. Mountains of evidence for these claims can be found in Scalia’s written opinions, his questions during oral arguments, and his off-the-court statements.

Before turning to that evidence, however, it is important to discredit one of the most common myths surrounding Justice Scalia. As I have written elsewhere, he was no originalist, despite his oft-repeated claims to the contrary. Scalia often ignored originalism altogether (affirmative action cases); distorted history beyond recognition (Second Amendment and Federalism cases); or just looked at those isolated historical sources that supported the conservative results he wanted to reach (campaign finance regulation). Scalia is often credited by conservatives for voting liberal in criminal procedure cases but he did not vote that way very often and, according to Professor Lawrence Rosenthal, he only voted originalist in 18% of fourth amendment cases. Scalia was in no sense an originalist Justice when it came to his votes.

Apart from his faux originalism, Justice Scalia’s opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities. It must be remembered, of course, that Supreme Court Justices should be judged according to the values of the times in which they lived. There are numerous Supreme Court Justices, maybe most Justices prior to 1954, who we still honor and who undoubtedly held racist, sexist, and anti-LGBTQ views. But Justice Scalia made all of the statements below (and issued all of the votes discussed in this post) in the last 35 years.

In 1996, he was the only dissenter in a case requiring the Virginia Military Institute, an elite state-funded military college, to accept women after it refused to do so for over a century. Scalia argued that courts should defer to all but the most irrational of laws that discriminate against women. Even Chief Justice William Rehnquist, an opponent of civil rights progress for decades, disagreed with Scalia in the VMI case.

At the oral argument in the landmark Shelby County case, which gutted the Voting Rights Act, Justice Scalia responded to the point that a unanimous Senate had passed the law by saying that the Act was a “perpetuation of racial entitlement.” In light of this country’s sordid history of intentional suppression of Black voters through violence and literacy and character tests, this statement unsurprisingly shocked many people. The right to vote is not an entitlement (in the pejorative sense), racial or otherwise.

Scalia voted to strike down every affirmative action law he ever faced and on his way to doing so revealed his true self. At the oral argument in a case involving the University of Texas, Scalia said the following: “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well…. I’m just not impressed by the fact that that the University of Texas may have fewer [Blacks]. Maybe it ought to have fewer. And …when you take more, the number of blacks, really competent blacks admitted to lesser schools, turns out to be less.”

Not that long ago, the University of Texas was 100 percent white. When the school later used race as “a factor of a factor of a factor,” in the words of Justice Anthony Kennedy, to attain more diversity, Scalia steadfastly voted no, and suggested Blacks did not belong there anyway.

Scalia’s dissents and rhetoric about gays and lesbians bordered on the medieval. Dissenting in a 2003 case striking down a Texas law making it a crime for adults to engage in private, consensual gay sex, Scalia said that “[m]any Americans do not want persons who openly engage in homosexual conduct as partners in their business, scoutmasters for their children [and] teachers in their schools.” These statements, whether true or not, were projections of Scalia’s prejudice.

In another case, Scalia compared homosexual conduct to murder and bestiality. When he was later asked about these statements by a gay Princeton student, he responded, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don’t apologize for the things I raise.”

Justice Scalia also “interpreted” the first amendment’s establishment clause out of the Constitution. He said in several different opinions that legal coercion or compulsion was a requirement that plaintiffs had to establish to show the government violated the clause and relatedly that the government should be allowed to symbolically prefer one religion over others. But the free exercise clause, also in the first amendment, is violated when the government punishes or threatens religious exercise or treats one religion better than others or better than non-religion. Any government behavior that meets Scalia’s establishment clause test would also violate the free exercise clause. There is nothing in the history of the first amendment, however, suggesting that the two clauses should perform identical functions or that the establishment clause has no independent meaning.

Based on this misreading of the establishment clause, Scalia voted to uphold school prayers at graduation ceremonies, sectarian prayers at legislative sessions, teaching “creation science” in public schools, and religious symbols on government property. Furthermore, although Scalia believed strongly in the devil, he did not care for science.

Professor Caroline Corbin has argued persuasively that Scalia’s religion clause jurisprudence is based to a large degree on his inability to see Christian privilege in America, which made Scalia’s views on the establishment clause consistent with his views on race, poverty, civil rights, and many other aspects of American constitutional law. White, male Christians were most often the beneficiaries of Scalia’s jurisprudence while all other groups were marginalized.

It is hard to imagine how the Antonin Scalia Professor of Law at Harvard or the Professors at Antonin Scalia Law School teach their female, Black, non-Christian, and LGBTQ students about these cases. Imagine the students’ shock when they learn that Scalia thought the right to vote, so long denied to Blacks, was just a “racial entitlement,” or that Scalia thought it a good idea to compare homosexual conduct to murder and then to double-down on what he dismissively and insensitively called “a form of argument.” As late as 1996, he had no constitutional problem with a government-owned-and-operated military school limiting its substantial benefits to men. He had no difficulty with the government endorsing Christianity over all other religions and non-religion. How do we expect students to react to these insults when the professor standing in the room or their own school carries the name of the man who made them?

The Republican Party still views Scalia as their hero, but that is what we would expect from a political party either hostile to or indifferent towards the issues facing people of color, women, religious minorities, and the LGBTQ community. But law schools and great universities should know better. Honoring Scalia is a testament to a white-washed 1950’s America when women were expected to be wives and mothers, gays and lesbians had to hide in the closet, racism deeply infected our politics, and Christianity dominated our country.

The myth that Antonin Scalia was a principled, great jurist is one of the most dangerous misconceptions in American politics. He thought nothing of disparaging people unlike him as well as insulting even his fellow Justices. Far from being a role model for our law students, he should be an example of how judges should not act.

The real Justice Scalia can be seen in his dissent in the Court’s landmark decision invalidating state same-sex marriage bans. He compared the reasoning of Justice Kennedy’s majority opinion to the “mystical aphorisms of the fortune cookie.” But equality under the law is neither mystical nor an aphorism. It is a constitutional requirement of the Fourteenth Amendment-a requirement Scalia ignored, distorted, and abused during his long career at the expense of most of America’s outsider groups. He should be remembered as a man who often exemplified the worst aspects of our country and our culture, not a great or even a good judge, and certainly not in any sense an American hero.


Hashim said...

Eric, I won't bother rehashing the various mischaracterizarions we've previously debated, but Justice Scalia in Shelby County was clearly not saying "the right to vote" is a racial entitlement - rather, he was saying *Section 5 of the VRA* was a racial entitlement, because it went far beyond prohibiting intentional discrimination in voting on the basis of race (the only thing that the 15A prohibits) and instead adopted a super-charged disparate-impact test where jurisdictions couldn't adopt reasonable race-neutral laws merely because DOJ objected to a disproportionate burden on racial minorities, including on the outlandish theory that a different law would benefit racial minorities more and the failure to adopt it was thus discriminatory intent. That was indeed a racial entitlement - rewriting valid neutral laws to benefit racial minorities - and the harms and misuse it enabled are vividly demonstrated in cases like Miller v Johnson, where DOJ would refuse to preclear a redistricting map unless it *maximized* the number of majority-minority districts (which no reasonable person could think is required by the 15A right to be free from discrimination on the basis of race).

egarber said...

Great post. Thanks.

One obvious question:

Would Scalia have ruled differently if Smith had been about some sort of Christian / Catholic practice? As we know, it was about a minority form of religious observation - which I'm guessing you will say was probably THE reason he pushed for the "generally applicable" standard. And you'd likely be correct in that conclusion, imo.

Joe said...

City of Boerne v. Flores involved a property dispute involving a church & Scalia stuck to his approach applied in Oregon v. Smith.

My concern there is that one issue he flagged in his Smith opinion (his approach is one I'm sympathetic with but think was misapplied in that case) is that federal courts are not suitable in the close questions involved in a compelling state interest approach. But, when RFRA was applied to the federal government [so avoiding the federalism questions of Boerne], he never even in a concurring opinion flagged this concern.

A concern which to me is part of a consistent approach to religious liberty that he never consistently applied in an appropriate manner (again, even if I would disagree with details). For instance, appeals to history would have to address anti-Catholic history in public schools that help justify separation of church/state there.


I disagree with originalism, noting Prof. Segall's writings on how it was sloppily applied. And, that sort of thing -- including continuing, just with different ends, a broad sense of judicial power that is a concern -- is problematic.

But, what bothers me about Scalia particularly was his tone. RBG might have found him a pip. I think he degraded the judicial process. And, the fact Scalia/Thomas types (as compared to some other conservative I disagree with) are put out as models is depressing on that front. On some level, playing to the crowd is okay. But, he took it too far. And, this included using rhetoric over careful analysis over and over again.

Scalia had some strengths but "Scalia" as a character was what he became.

Joe said...

"Would Scalia have ruled differently if Smith had been about some sort of Christian / Catholic practice?"

As noted, he did applied it there too, but the cynic might note that he didn't have to worry given majority religions are generally protected by the political process.

Eric Segall said...

Hashim, he literally said the VRA was passed unanimously b/c it was a racial entitlement. I believe in text even if he didn't. Also, what you call "mischaracterizations," are direct quotes from Scalia's mouth. As to Smith, not sure, but everyone is right some of the time. I think had he lived, he would admitted error in Smith (though FWIW, I think its right).

Hashim said...

Exactly, he said that that *the VRA* (especially as reauthorized in 2006) was a racial entitlement, *not* that the "right to vote" is, as you misleadingly suggested. As I pointed out and you ignored, the VRA goes well beyond "the right to vote" free of discrimination and confers an entitlement on racial minorities to invalidate even race-neutral laws based merely on disproportionate burden. That is not what the text or precedent of the 15A requires, and your trying to equate the much more sweeping standard of the VRA with the constitutional "right to vote", and then suggesting that he deemed the "right to vote" itself a "racial entitlement", is absolutely a mischaracterization.

egarber said...

<<but the cynic might note that he didn't have to worry given majority religions are generally protected by the political process.

I think this is a good thought. Correct me if I'm wrong, but most scholars seem to think Smith is effectively a much tougher framework for religious minorities, since communities tend to accommodate dominant faiths. If this was part of Scalia's thinking - either overtly or unconsciously / subconsciously - it seems consistent with Professor Segall's point that he tended to "other-ize" people as a threshold matter.

Unknown said...

My favorite Scalia moment is in this interview from Sept. 26, 2013, where he makes the following two statements literally within minutes of each other, completely unaware of the contradiction:

1. "I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, 'I better reexamine my position!'"

2. "Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels! You travel in circles that are so, so removed from mainstream America that you are appalled that anybody would believe in the Devil! Most of mankind has believed in the Devil, for all of history. Many more intelligent people than you or me have believed in the Devil."


vortican said...

I had never even heard of this blog or Eric Segall until today but reading such an pointless and repetitive exercise in character assassination that it could only have come from a bitter partisan dripping with disappointment and disdain for the legacy of the Supreme Court. That could be forgiven, I suppose, the arguments presented had any merit whatsoever, but sadly, they do not. It's not hard to peruse Justice Scalia's opinions on the very cases presented here to find the numerous references to case law, legislative history, and principles that undergirded Justice Scalia's positions on these issues. It is only a philosophical difference that justifies the extreme attacks on his opinions; not even a legal argument but rather a different vision of the Constitution and its application in law. The colorful way in which Justice Scalia presented his position can certainly be criticized or misinterpreted as personal attacks but a careful reading reveals this not to be the case. As he himself said, he attacks arguments, not people. Sadly, too many today fail to grasp the difference or choose to willfully not see it. The other difference is the basic philosophical one today that both sides of the political spectrum have purposefully divided themselves into: an outcome-focused approach or a process-focused approach. Originalism is not truly the issue; it is only whether the particular policy preferences line up with Mr. Segall's. On that issue, Justice Scalia's personal preferences, which frequently did not match his rulings, obviously line up against Mr. Segall's. That is the primary reason why he recycled his criticisms of the justice and basically rewrote an article from a few years ago. This is not scholarship or commentary; it's just whining.

Greg said...

I agree with Hashim that Scalia was talking about the VRA, not the right to vote, and we shouldn't mischaracterize his position.

However, the text and history of the 15th amendment seem to give Congress fairly broad latitude to enact laws to protect the right of minorities to vote, and for good reason considering what we saw with Jim Crow. Indeed, the behavior we're seeing today from many Republican-led states indicates to me that the disparate impact test was indeed the right one. It's easy to dress up a law as being for some neutral purpose when you know full well that it's real purpose is to restrict minorities (or any other disfavored group.)

Application of disparate impact rules is complicated, and I'm uncomfortable with the path-dependence it creates in whether a change to the law is allowed or not. However, given the creativity that has been shown in finding ways to restrict minorities while being able to claim to be passing content-neutral laws, I'm not sure there's a better alternative to the Voting Rights Act, particularly for jurisdictions that repeatedly show that they are willing to do anything in their power to keep minorities from voting.

Greg said...

To answer one of Prof. Segall's questions, I don't think most students would care if their professor held the Werner von Braun Chair for Applied Rocketry or any other position named in honor of a questionable historical figure. I doubt they would even notice, and if they did, would probably consider the existence of the honor a reflection on the university more than holding the honor was a reflection on the professor.

As such, I doubt students would think much at all about their professor holding some honor named after Justice Scalia. He's a Supreme Court justice, and most recognize that's enough to have honors named after him, regardless of his politics or how they are viewed in modern times. Maybe a few students would notice and be offended, but I suspect those would be the students who are looking for something to be offended about, not an actual impact on their ability to study.

Maybe I'm wrong and there are students who would care about this, but not anyone I ever met in college.

Eric Segall said...

Greg, I think you vastly underestimate the number of people deeply offended by Scalia. See my Twitter feed today. And as for the VRA, calling that statute a “racial entitlement” is obscene after the history of voter denial in, among thousands of other places, Shelby County, Alabama.

Hashim said...

Eric, given that the history of intentional vote denial was overwhelmingly decades prior to the 2006 reauthorization, and that the overwhelming use of the VRA (and section 5 in particular) in the years before 2006 was to browbeat jurisdictions into abandoning race neutral laws in order to adopt voting practices that are more favorable to racial minorities, your definition of obscene appears to be similar to Justice Stewart's. In all events, I'm glad to see that you've tacitly abandoned your misleading suggestion that Scalia called the "right to vote" a racial entitlement, and fallen back to (misguided) name-calling.

cMh said...

I do not share the disdain for Justice Scalia. But I do believe that two of the worst opinions in my lifetime were written by him: Employment Division v. Smith and D.C. v. Heller.

As Justice O'Connor pointed out in her concurrence in the judgment in Smith, Scalia invented an entirely unnecessary test in a case that could've been easily (and rightly) decided with the same result using the free exercise jurisprudence prevailing at the time. The muddled mess that Smith created for both the religious and non-religious need never have happened. 'Tis sad that so many today (primarily on the left) do not recognize the decision for the travesty to the constitution it was. Justices Marshall, Blackmun, and Brennan did.

In Heller, Scalia's attempt at creating a solid textual / originalist rationale for removing the first 13 words from the second amendment was thoroughly rebutted by Justice Stevens in his dissent. 'Tis sad that so many today (almost exclusively on the right) do not recognize the decision for the travesty to the constitution it was.

Eric Segall said...

Hashim says, "the overwhelming use of the VRA (and section 5 in particular) in the years before 2006 was to browbeat jurisdictions into abandoning race neutral laws in order to adopt voting practices that are more favorable to racial minorities...." This is as grotesquely uninformed an opinion as I have ever seen on this website.

Greg said...

Wow, for this site, this is getting personal.

I don't think I understand Twitter. I tried looking at your feed but as usual found getting useful information out of it basically impossible. I'll take your word for it that several students indicated that they would have trouble learning at the Scalia Law School or from a professor holding the Justice Scalia Chair.

Maybe I think more highly of colleges and especially professors than you do, but I expect in either case a professor would be able to criticize Justice Scalia, regardless of what school they taught at or what chair they held. It's also likely that law students are a significantly more activist group than engineering students, so perhaps my view is tainted by my chosen field of study.

Hashim and I both objected to this sentence, which we felt implicitly misrepresented Justice Scalia's views in the context of the original post: The right to vote is not an entitlement (in the pejorative sense), racial or otherwise. I personally have no objection to your considering it offensive when Justice Scalia (or anyone else) calls the VRA a racial entitlement. The VRA is the best tool we had for preventing the return of Jim Crow. I just don't feel like Justice Scalia's views have to be misrepresented to expose him for who he is.

ALM said...

Perhaps the most interesting part of the arguments made by Scalia have been made with the gimlet eye of a canon lawyer. Whatever you may think of him, Scalia parsed and analyzed the law favor white men, and that is a fact!

Eric Segall said...

Greg, the idea that the VRA was used to browbeat majorities is so deeply offensive I’m bowing out. For the record, a gay law prof on my faculty tweeted about how damaging Scalia’s rhetoric was to him (before he was a prof) and many, many others agreed/.

Hashim said...

But see, e.g., Miller v. Johnson, 515 us 900, 924-925 (1995):

"Instead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority-black districts. Although the Government now disavows having had that policy, see Brief for United States 35, and seems to concede its impropriety, see Tr. of Oral Arg. 32-33, the District Court's well-documented factual finding was that the Department did adopt a maximization policy and followed it in objecting to Georgia's first two plans.... In utilizing § 5 to require States to create majority-minority districts wherever possible, the Department of Justice expanded its authority under the statute beyond what Congress intended and we have upheld."

Eric Segall said...

Yup, poor Ga being browbeat by the feds for two hundred years of slavery, segregation, apartheid, racial violence, Black Codes, a public park opening on the anniversary of Lincoln’s death celebrating the KKK in my lifetime. Feel so bad for the white people being forced to address those issues.

Hashim said...

Your sarcastic lack of empathy for GA concedes my point. You previously claimed that "the idea that the VRA was used to browbeat majorities is so deeply offensive" (and earlier, "grotesquely uninformed"). In response, I quoted an extremely well-known Supreme Court opinion discussing the extremely well-known misuse of the VRA to do exactly that -- literally, a "max-black" policy (see also pp. 907-08, 917-18). And your response is merely that you don't "feel so bad" that the VRA was being used by DOJ in the 1990s (and later) to confer electoral advantages on minorities in ways that have literally nothing to do with stopping intentional discrimination, merely because of intentional discrimination that occurred *decades* before and is *completely irrelevant* to where current district lines are drawn (and thus hardly "address[es]" past injustices). At this point, I'm happy to leave it for others to decide whether or not such VRA applications can reasonably be characterized as a "racial entitlement" -- and more importantly, whether Justice Scalia said that the constitutional "right to vote" itself (as opposed to the statutory VRA standard) is a racial entitlement, which was the misleading characterization in your OP that you've still yet to defend (because it is indefensible).

Eric Segall said...
This comment has been removed by the author.
Eric Segall said...

Saying the VRA is a racial entitlement is saying so is the right of people of color to vote.

Hashim said...

So much for your "believ(ing) in text even if (scalia) didn't". It defies both the English language and common sense to claim that calling a statute that provides *race-based preferences for certain racial groups* a "racial entitlement" is the same as so describing a constitutional right that requires *race-neutral treatment for all racial groups.* The 15A doesn't treat minorities any better than majorities - all are protected from discriminatory treatment and none are protected from race-neutral laws with mere disproportionate burdens. By contrast, under VRA section 5 and section 2 post-1982, race-neutral laws that disproportionately burden minorities are subject to scrutiny and potential invalidation, whereas race-neutral laws that disproportionately benefit minorities are fine. Those two things are fundamentally different (much like antidiscrimination laws are fundamentally different from affirmative action policies); your attempt to insist that they are the same, and then criticize Scalia based on that false equivalency, is just silly.

Unknown said...

For those interested in a deeper dive,Prof. Segall's post is supported in NYU Law Professor E. A. Purcell's 2020 powerful book, ANTONIN SCALIA and AMERICAN CONSTITUTIONALISM (Oxford U. Press). Dan Borinsky(