The Dangerous Mythology That Still Surrounds Justice Antonin Scalia

Justice Antonin Scalia passed away in 2016 but his legacy and the myths surrounding his jurisprudence still impact our politics and our courts despite his often controversial and bigoted views on most of the important civil rights issues of our day. For example, not long after his death, George Mason University received a substantial amount of money from private donors (including the Koch Brothers) to change the law school’s name to the Antonin Scalia Law School.[1] More recently, Harvard Law School announced that it filled its outside-funded Antonin Scalia Professor of Law Chair.[2] The money for the Chair came from the family of a man who had to drop out of a political race because he used a racial slur.[3]

While running for President, Donald Trump repeatedly used the name Antonin Scalia to signify the kinds of judges he would appoint.[4] There is even a play written about Scalia which was performed in the shadow of the highest court in the land.[5] Justice Scalia, even six years after his death, remains a hero to the influential Federalist Society and the Republican Party.

Supreme Court Justices should, of course, be judged according to the values of the times in which they lived. There are numerous Justices who served on the bench prior to the late twentieth century who we still honor but undoubtedly held racist, sexist, and anti-LGBTQ views. It would not be fair for us to impose modern sensibilities on these men. However, Justice Scalia made all of the racist, sexist, and homophobic statements discussed in this essay (and issued all of the votes recounted herein) in the last thirty-five years when he should have known better.

It is one thing to admire those rare Justices, perhaps like the first Justice Harlan, who famously dissented in Plessy v. Ferguson,[6] and The Civil Rights Cases,[7] who are somewhat ahead of their times on civil rights issues. Such Justices ae unusual for understandable reasons. It is quite another thing to honor a Justice who repeatedly insulted, stigmatized, and ruled against virtually all marginalized groups.

The constant lavish testaments to Justice Scalia today 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 most stood for 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. This essay provides substantial evidence for these claims in Scalia’s written opinions, his questions during oral arguments, and his off-the-court statements.

For those who might wonder whether it matters whether elite law schools, the Federalist Society, the Republican Party, and leading law professors still honor Justice Scalia, the answer is a resounding yes. His views on race, gender, LGBTQ rights, as well as originalism, are read by law students, lawyers, and judges on a regular basis, and given his almost universal admiration by one side of our politically polarized society, contribute to the difficulty we have overcoming racism, sexism, and LGBTQ prejudice today.

Part I demonstrates that, contrary to both the conventional wisdom of many of today’s legal scholars and judges, as well as Scala’s own rhetoric, he was not an originalist. Instead, he was a deeply conservative, religious, Republican, and that is how he ruled in most cases (whether or not originalism supported his vote). Part II supports my charges of racism, sexism, and homophobia as well as my claim that Scalia strongly favored religion over non-religion. Part III suggests a path forward.

I. Scalia was Not an Originalist

As I have documented elsewhere,[8] Justice Scalia was no originalist when it came to his votes despite his oft-repeated claims to the contrary. He repeatedly lauded his originalism in his judicial opinions and public statements off the Court. He famously toured the country speaking at law schools and other venues shouting, “The Constitution is Dead, Dead, Dead.”[9]

The truth is that Scalia often ignored originalism altogether (affirmative action cases),[10] distorted history beyond recognition (Second Amendment,[11] and Federalism cases);[12] or just looked at those isolated historical sources that supported the conservative results he wanted to reach (campaign finance reform).[13] Scalia is credited by conservatives for voting liberal in criminal procedure disputes but he did not vote that way often and, according to Professor Lawrence Rosenthal, he only voted originalist in 18% of fourth amendment cases.[14] Scalia was in no sense an originalist Justice when it came to his votes.

One of the clearest examples of Scalia’s living constitutionalism reflective of many other opinions he wrote is his concurring opinion in Dickerson v. Minnesota.[15] The issue in the case was whether the Fourth Amendment allowed the police to seize contraband during a permissible search under Terry v. Ohio, which held that police searches incidental to arrest to discover weapons are valid. The Justices ruled that the search in Dickerson was “unreasonable” and therefore violated the Constitution because the officer felt around for contraband in the defendant’s pocket, which the officer had already discovered contained no weapons.[16]

Justice Scalia wrote a concurring opinion containing his typical ode to originalism, “I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification.”[17] Therefore, Scalia said, the right to be free from “unreasonable searches and seizures,” must be construed in light of what that phrase meant when the Constitution was ratified. Justice Scalia then used first principles to suggest that he was unsure whether the Terry rule was a proper interpretation of the Fourth Amendment’s original meaning.

He doubted that “the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.”[18] Justice Scalia then went on, however, to articulate a flexible approach to that question consistent much more with living constitutionalism than originalism. He said that “even if a ‘frisk’ prior to arrest would have been considered impermissible in 1791 . . . perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly . . . have become common—which might alter the judgment of what is ‘reasonable’ under the original standard.”[19]

In other words, even if the Founding generation had specifically considered the legality of protective frisks prior to arrest, and even if they had decided that such frisks were illegal, the same issue may be decided differently by future judges because of societal and technological changes occurring after the Constitution was ratified. But if, according to Justice Scalia, the interpretation of the Fourth Amendment to known facts can change, why can’t the meaning of phrases like “cruel and unusual punishments,” “equal protection,” “liberty,” and “due process,” also change when facts change? Justice Scalia never provided any kind of answer (principled or otherwise) to that question.

If Scalia were a true originalist, perhaps the racism, sexism, and homophobia documented below could be, if not justified, at least explained by his reliance on old texts and ancient values combined with his view of the appropriate judicial role. But, as many others have noted,[20] Scalia departed from original meaning so often, and on so many diverse issues, that his consistent opposition to civil rights during his career simply cannot be justified by an alleged but largely fictitious pre-existing theoretical commitment. Other explanations are necessary to explain his behavior. The examples below show clearly that what motivated Scalia was not a specific theory of constitutional interpretation, but rather a deeply engrained conservatism, racism, sexism, and homophobia.

II. Justice Scalia’s Bigotry

Justice Scalia’s opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities. In 1997, he was the only dissenter in a case requiring the Virginia Military Institute (“VMI”), an elite state funded military college, to accept women after it refused to do so for over a century.[21] 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.[22]

Off the bench, Justice Scalia confirmed his view that women were not entitled to any heightened protection under the equal protection clause of the fourteenth amendment. When asked about this issue, he responded as follows: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.”[23]

According to many originalists, Scalia’s certainty about the original meaning of the fourteenth amendment and gender discrimination is misplaced. Professor Larry Solum, considered one of the most important academic originalists in America, as well as Professor Steven Calabresi, one of the co-founders of the Federalist Society, and another leading originalist, both have argued that the fourteenth amendment bars, absent a strong state interest, gender discrimination.[24] One would think that only clear contrary evidence from text or history could possibly justify a judge concluding that official government discrimination based on gender was constitutional. Scalia, however, did not make any such showing.

Justice Scalia also exhibited either substantial insensitivity to race or outright racism during his career. At the oral argument in the landmark Shelby County case which gutted the Voting Rights Act,[25] 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.”[26] In light of this country’s sordid history of intentional suppression of Black voters through literacy and character tests and redistricting, this statement unsurprisingly shocked many people.[27] The right to vote is not an entitlement, racial or otherwise, and to suggest that voting rights are racial entitlements is insensitive as best and racist at worst.

Scalia voted to strike down every affirmative action law he ever faced as a Justice. On his way to doing so, he revealed his true biases. 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.”[28]

In 1955, the University of Texas was 100 percent white.[29] When the school used race as “a factor of a factor of a factor,” in the words of Justice Anthony Kennedy,[30] to attain just a bit more diversity, Scalia steadfastly voted no, and suggested Blacks did not belong there anyway.

Scalia’s defenders at the time claimed that the Justice was simply referring to the so-called “mismatch theory,” most aggressively defended by Professor Richard Sander.[31] This attack on affirmative action, however, has been thoroughly discredited.[32] But even if Scalia was simply latching on to an academic critique of affirmative action, he could have cited the theory and suggested that the benefits of racial preferences are outweighed by other factors in language less incendiary than suggesting that maybe the University of Texas should “have fewer Blacks.”

Justice Scalia’s sexism and racism, while obvious and troubling, were even less disturbing than his dissents and rhetoric concerning gays and lesbians. Dissenting in a 2003 case striking down a Texas law making it a crime for adults to engage in private, consensual gay sex,[33] 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 were projections of Scalia’s prejudice.

In another case,[34] Scalia compared homosexual conduct to murder and bestiality. He said the following:

The Court’s opinion contains grim, disapproving hints that Coloradans have been guilty of ‘animus’ or ‘animosity’ toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being   or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even ‘animus’ toward such conduct.[35]

These insulting comparisons are terrible but at least they were written in the context of a bitter dissent. Possibly worse than the offensive analogies, however, was how Scalia later reacted towards a gay Princeton student who told Scalia he was bothered by the remarks. A decent person might have responded by saying that the comparisons were extreme but necessary to make a point, or a similar disclaimer, and then apologize or at least clarify that the writer of those words did not really mean that homosexuality could be productively compared to murder or bestiality. Instead, Scalia stridently 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.”[36] This type of aggressive insensitivity was part of Scalia’s essential character.

In addition to his negative attitudes when it came to the rights of  people of color, women, and LGBTQ folks, 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 demonstrate that the government violated the clause and relatedly that the government is allowed to symbolically prefer religion over non-religion.[37] 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 in tangible ways. Any government behavior that satisfied 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,[38] sectarian prayers at legislative sessions,[39] teaching “creation science” in public schools,[40] and religious symbols on government property.[41] Furthermore, although Scalia believed strongly in the devil,[42] he did not care for science.[43]

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,[44] which makes 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.

III. Consequences and Legacies

It is hard to imagine how the Antonin Scalia Professor of Law at Harvard or the faculty at the 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.”[45] As late as 1997, he had no constitutional problem with a government owned military school limiting its substantial benefits to men. He had no difficulty with the government endorsing religion over non-religion. How do we expect students to react to these insults when their own professor or their school carries the name of the man who made them?

The Republican Party still views Scalia as their hero but that is just politics. Law schools and great universities should know better. Honoring Scalia is a testament to 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 himself 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. His biting and sarcastic dissents and his dismissive majority opinions with their overheated rhetoric unequivocally added to our country’s polarization generally and within the legal community specifically. As one scholar has observed, Scalia’s “departure from the custom of respectful dissent marked a turning point in the Court’s tradition of collegiality and civility.”[46]

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.”[47] But equality under the law is neither mystical nor an aphorism. It is a constitutional requirement of the fourteenth amendment-a requirement that 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 resembled 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.

Conclusion

The legal community should not cancel Justice Scalia nor ignore his many crude and cruel statements, opinions, and votes. Rather, lawyers, law professors, judges, and politicians should accept that Scalia should not be held up as the kind of judge one should emulate. His well-documented hypocrisy over originalism, his many votes against virtually all traditionally disadvantaged groups, his inability to escape his own biases, and his over-the-top rhetoric in our most important civil rights cases all suggest a failed, angry jurist with a decidedly non-judicial demeanor. That should be the sorry legacy of Justice Antonin Scalia.

[1] See https://www.washingtonpost.com/news/true-crime/wp/2016/04/05/george-mason-u-changes-name-of-scalia-law-school-to-avoid-embarrassing-acronyms/
[2] See https://www.thecrimson.com/article/2021/4/21/new-scalia-professor-law/
[3] The Considine Foundation funded the Chair. https://today.law.harvard.edu/harvard-law-school-establishes-professorship-honor-justice-antonin-scalia-60/. Here’s a story about the racial slur: https://www.washingtonpost.com/archive/politics/1986/06/06/candidate-perfect-until-he-started-discussing-issues/654765c8-02da-4196-9247-c919d9b4ff68/
[4] See https://www.lgbtqnation.com/2016/10/hrc-ad-shows-trump-pleding-appoint-judges-like-scalia-scary/
[5] See https://www.villagevoice.com/2018/07/24/the-originalist-a-play-about-justice-antonin-scalia-shows-sympathy-for-the-devil/
[6] 63 U.S. 537 (1896).
[7] 109 U.S. 3 (1883).
[8] See https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6105&context=law_lawreview
[9] See https://www.politico.com/story/2013/01/scalia-the-constitution-is-dead-086853
[10] See https://prospect.org/article/scalia-thomas-originalist-sinners/
[11] See https://www.theatlantic.com/politics/archive/2015/12/guns-have-always-been-regulated/420531/
[12] See http://ericposner.com/originalism-class-2-printz-as-a-paean-to-the-living-constitution/
[13] See https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=4640&context=ndlr
[14] See https://repository.uchastings.edu/hastings_law_journal/vol70/iss1/3/
[15] 508 U.S. 366, 368 (1993).
[16] Id. at 378.
[17] Id. at 379 (Scalia, J., concurring).
[18] Id. at 381.
[19] Id. at 382. See also Eric Segall, Will the Real Justice Scalia Please Stand Up, 50 Wake Forest L. Rev. Online 101, 106 (2015).
[20] See Edward Purcell, ANTONIN SCALIA AND AMERICAN CONSTITUTIONALISM: THE HISTORICAL SIGNIFICANCE OF A JUDICIAL ICON (2020); see also https://prospect.org/justice/scalia-problem-originalism-textualism-trumpism/; https://www.newyorker.com/news/news-desk/scalias-contradictory-originalism
[21] United States v. Virginia, 518 U.S. 515 (1996) (Scalia, J., dissenting).
[22] Id. at 558 (Rehnquist, C.J. dissenting).
[23] https://talkingpointsmemo.com/dc/scalia-14th-amendment-doesn-t-protect-women-against-discrimination
[24] See Lawrence Solum., Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243,  1268-69 (2019); Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Texas l. Rev. 1, 11 (2011).
[25] Shelby County v. Holder, 570 U.S. 529 (2013).
[26] https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-96_7648.pdf at 42.
[27] See https://www.msnbc.com/politicsnation/scalia-renewing-voting-rights-act-msna19290
[28] See https://www.supremecourt.gov/oral_arguments/argument_transcripts/2015/14-981_onjq.pdf, at 67-68. See also https://www.washingtonpost.com/news/answer-sheet/wp/2015/12/12/what-scalias-controversial-remarks-about-african-americans-expose-about-u-s-higher-education/
[29] https://www.texastribune.org/2016/09/09/ut-austin-honors-first-black-undergraduates/
[30] Fisher v. University of Texas at Austin, 579 U.S. ___ , at _ (2016).
[31] See https://www.cnn.com/2015/12/13/opinions/brown-scalia-mismatch-theory/index.html
[32] See e.g., https://www.uclalawreview.org/mismatch-science-desistance-failed-arguments-affirmative-action/#:~:text=Proponents%20of%20mismatch%20theory%20deny,would%20have%20done%20even%20better.
[33] Lawrence v. Texas, 539 U.S. 558, 602-03 (2003) (Scalia, J., dissenting).
[34] Romer v. Evans, 517 U.S. 620, 644 (1996) (Scalia, J., dissenting).
[35] Id.
[36] See https://www.latimes.com/world/la-xpm-2012-dec-11-la-na-nn-scalia-laws-homosexuality-murder-20121211-story.html
[37] See https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1295&context=fac_articles
[38] See Lee v. Weisman, 505 U.S. 577 (1992) (Scalia, J., dissenting).
[39] See Town of Greece v. Galloway, 572 U.S. 565 (2014).
[40] See Edwards v. Aguillard, 482 U.S. 578 (1987) (Scalia, J., dissenting).
[41] See County of Allegheny v. ACLU, 492 U.S. 573 (1989) (Scalia, J., concurring in part and dissenting in part).
[42] See https://nymag.com/news/features/antonin-scalia-2013-10/
[43] See https://www.nytimes.com/interactive/2016/12/21/magazine/the-lives-they-lived-antonin-scalia.html
[44] See https://repository.law.miami.edu/cgi/viewcontent.cgi?article=1295&context=fac_articles
[45] See https://www.latimes.com/world/la-xpm-2012-dec-11-la-na-nn-scalia-laws-homosexuality-murder-20121211-story.html
[46] See J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility, 18 J. APP. PRAC. &

PROCESS 201, 202 (2017).
[47] Obergefell v. Hodges, 576 U.S. ___ (2015) (Scalia, J., dissenting).