By Eric Segall 2021
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.
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