A brilliant legal mind with an energetic style, an incisive wit and colorful opinions…he will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court.
— Barack Obama1
Go gentle into that good night, you angry toad man.
— Natasha Vargas-Cooper2
It is always amusing to observe the twisted testimonials of politicians and politicos when a prominent enemy shuffles off this mortal coil. In the year of The Donald, I prefer the indelicate approach. Even in the hour of his death, I have no tears for Supreme Court Justice Antonin Scalia. I have long wished for his departure from the nation’s highest court and I refuse to pretend otherwise in the name of civility.
If I have any sympathy at all it is for Clarence Thomas, the George W. Bush of Supreme Court justices, the puppet who lost his puppet master, the justice without a voice.
To anyone who believes in civil rights, the rights of women, the rights of minorities, the cleansing of the planet, voting rights and the principles of democracy, the sudden absence of one of our most prominent enemies is a cause for celebration.
In one of his last appearances on the bench, in the case of Fisher v. University of Texas (2015), Scalia delivered an extensive diatribe on the inferiority of African Americans, including this gem: “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, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”
It is not a surprise that we had a racist on the Supreme Court. We have had many racists and bigots on the high court (see Dred Scot v. Sandford 1857, Plessy v. Ferguson 1896, Korematsu v. United States 1944, on and on). It is stunning, however, that in the year 2015 we had a Supreme Court justice who felt free to express his racism openly and blatantly from the bench. Outrage regarding the senior justice’s diatribe was widespread but absent from the reportage was the response of the man who has served as Scalia’s faithful lap dog for the last quarter century. Did Justice Thomas manage a modest exception or did he fade into Scalia’s shadow as usual?
Scalia’s death leaves Clarence Thomas as the court’s last adherent to the infamous “originalist” school of constitutional jurisprudence. The school requires its followers to interpret the constitution by attempting to decipher what the author(s) intended at the time of its adoption. As interpreted by Scalia and (with a large measure of sarcasm) Thomas, its application dutifully transports us back in time: Slavery is not a crime against humanity but an accepted and legitimate business practice, the right to hold office and indeed the right to vote is reserved to white male property owners, labor rights do not exist, racial minorities are not protected and women have no standing.
How convenient that the America of the late eighteenth century so closely resembles the ideal world of Antonin Scalia. The toad man served as the bedrock of a regressive court long enough to fix his name and opinion on some of the court’s worst and most destructive decisions, including:
Webster v. Reproductive Health Services 1989 and Planned Parenthood v. Casey 1992: rulings that upheld the state-by-state assault on abortion rights by blocking access to women.
Lucas v. South Carolina Coastal Commission 1992: one in a series of anti-environment rulings, this one undermining government authority to protect public resources from private exploitation.
Bush v. Gore 2000: the openly political decision negating the individual right to vote and enabling George W. Bush to wreak havoc in the Middle East and crash the global economy.
Ledbetter v. Goodyear Tire & Rubber: a convoluted decision negating a woman’s right to equal pay for equal work.
Exxon Shipping Co. v. Baker 2008: a ruling that reduced damages for the Exxon-Valdez disaster from five billion to 500 million dollars and serving notice that corporations will not suffer consequences proportionate to harm.
Shelby County v. Holder 2013: a decision that effectively repealed the voting rights act and enabled southern states to disenfranchise minority voters through redistricting and voter identification laws.
Citizens United v. Federal Election Commission 2010 and McCutcheon v. FEC 2014: rulings that defined corporate contributions to political campaigns as protected free speech, overruled limits on corporate contributions and granted corporations the rights of citizens.
These are just a sampling from the legacy of Justice Antonin Scalia. It is a legacy of antagonism, repression, and intolerance. It is a legacy of environmental destruction, dismantling human rights and defying the principles of democracy. Perhaps above all it is a legacy that lifts corporations to the level of a new American ruling class. It pushes us toward oligarchy and asks us to sacrifice our right to protest. It promotes a worldview that relegates women, racial minorities, sexual identity minorities and laborers to second or third class citizenship.
I am not inhuman. I understand that Antonin Scalia had a family and a circle of friends who are now mourning his death. I understand that some individuals of progressive leanings, including Supreme Court Justice Ruth Bader Ginsburg, found him engaging. I understand and empathize on a human level. But this was not some distant relative who delivers a right-wing rant and stimulates a lively discussion at the dinner table once in a blue moon. Scalia wielded great power, arguably more power than any president in the modern era, and he used that power to affect great harm.
Forgive me if my empathy is limited and my tears run dry. I did not wish him death but I am glad his run on the court has ended.
To those GOP members of the United States Senate who are sworn to block Scalia’s replacement by the current president (and to the president, himself, who has always been too willing to compromise) I offer this warning and prediction:
You will lose the next presidential election to the same voters your party and Justice Scalia fought so fervently to repress: minorities. You will lose the Senate as well. You will then enable the next president to appoint Barrack Obama to the Supreme Court.
Be careful what you wish for. As T.S. Eliot once wrote: Our beginnings never know our ends.
- “Obama’s Views on Antonin Scalia and the Justice’s Successor” by Kishnadev Calamur, The Atlantic, February 13, 2016.
- “Bye Scalicia: Antonin Scalia’s Worst Decisions on the Rights of Women and LGBTQs” by Natasha Vargas-Cooper, Vice, February 13, 2016.