I know it's bad form to speak ill of the dead, particularly those who have dedicated their lives to public service, but I'm sorry, Antonin Scalia was not the great scholar and man of principle that
some pundits are making him out to be. He was a delusional hypocrite, and in the position of power he occupied with no one to answer to but the Reaper, he was dangerous. I would rather have seen him impeached than dead, but if God wants to fill in where Congress fails to act, well, who am I to question His judgement?
What made Scalia delusional was that he believed he knew the One True Way to interpret the Constitution, and that the One True Way was Originalism. What made him a hypocrite was that he was perfectly willing to chuck originalism out the window when it didn't lead to the result he wanted.
One could surely write a book about Scalia's hypocrisy, but I don't have time for that so I'll just cite a few particularly egregious examples. Let's start with
Gonzales v. Raich. That was the case where the Court ruled, with Scalia concurring, that the Commerce Clause gives Congress the power to make it illegal for an individual to grow marijuana for personal medical use even in a state where such use is legal under state law. That this is untenable under an originalist interpretation of the Constitution is so obvious that a first-year law student would have no trouble making the case. You may recall that the U.S. federal government tried to impose prohibition once before, but before that first disastrous experiment could be conducted the U.S. had to pass the 18th amendment to the Constitution. Manifestly then, prohibition was not among Congress's enumerated powers prior to the passage of the 18th amendment. There are only two possible ways you can squeeze a prohibition power out of the Commerce Clause: you can read something into it that the founders clearly did not intend, or you can argue that the whole sordid affair of passing the 18th amendment and then repealing it again 13 years later was unnecessary, just a colossal waste of time because not a single legal mind in the entire country realized that Congress could just, you know,
pass a law.
Another example that sticks in my craw because it hits close to home is Scalia's blatant disregard for the separation of church and state. In October 2014, Scalia gave a
speech where he said:
I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over nonreligion. That’s a possible way to run a political system. The Europeans run it that way, and if the American people want to do it, I suppose they can enact that by statute. But to say that’s what the Constitution requires is utterly absurd.
This past January he
doubled down on that position:
Government support for religion is not only justified by the Constitution, it was the norm for hundreds of years...
Slavery was the norm for hundreds of years too, but let's not get sidetracked here. Let's look at Scalia's claim that government support for religion is justified by the Constitution. Where exactly is that justification? The word "God" does not appear anywhere in the Constitution. The word "religion" appears once, in the First Amendment:
Congress shall make no law respecting an establishment of relgion...
And then the word "religious" appears once:
...no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States
And that's it. So where exactly is the Constitutional justification for Scalia's claim that government support for religion is justified by the Constitution? It's not there. He has to extract it from history somehow, which I suppose is not entirely unjustifiable, except that whenever someone does the exact some thing to support a position that he opposes,
all of a sudden that's not allowed:
One case was Romer v. Evans, in which the people of Colorado had enacted an amendment to the state constitution by plebiscite, which said that neither the state nor any subdivision of the state would add to the protected statuses against which private individuals cannot discriminate. The usual ones are race, religion, age, sex, disability and so forth. Would not add sexual preference — somebody thought that was a terrible idea, and, since it was a terrible idea, it must be unconstitutional. Brought a lawsuit, it came to the Supreme Court. And the Supreme Court said, “Yes, it is unconstitutional.” On the basis of — I don’t know. The Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth.
Just for the record, the justification for ruling an
a priori license to discriminate against gays to be unconstitutional is the equal protection clause of the fourteenth amendment. To which Scalia's response was not to explain why he didn't think this was a valid argument, but rather simply to stick his fingers in his ears and say, "Nah nah nah I can't heeeeaaaar you!"
Like I said, one could write a book. I'll just point out one final example of Scalia's hypocrisy, one which was particularly egregious and consequential. When it came to issues like abortion and gay rights, his unwavering position was that these issues should be left to the states and to the democratic process. (I suppose that if one could somehow muster the votes to repeal the
13th amendment, Scalia would have had no problem with that.) He was constantly complaining about how activist liberal judges were legislating from the bench. But he had no problem being the deciding vote when it came time to
appoint a Republican President of the United States from the bench.
If that's not enough to convince you that the Scalia-worshipping emperor has no clothes, there's
this:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent
It is hard to imagine a more despicable thing a human being could say. Not only is Scalia saying that
executing innocent people is OK as long as they've had a "fair trial" (whatever the hell that could possibly mean in a situation like this), but he's
trying to fob the responsibility of it onto "this court" as if he had nothing to do with this sorry state of affairs! And besides, how could there possibly be
any more
cruel and unusual punishment than
executing an innocent person?
Bah.
Antonin Scalia was the Donald Trump of the Supreme Court: obnoxious, hypocritical, and dangerously muddled in his thinking. He made for great entertainment, but absolutely terrible law. May he rest in peace and trouble us no more.
