On Feb. 13, 2016, Antonin Scalia, the first Italian-American to serve on the Supreme Court, passed away.
He was 79, a devout Roman Catholic, and an “originalist” and “textualist” in his thinking about Constitutional issues.
Words used to describe him were forceful, witty, and combative. His legendary friendship with Justice Ruth Bader Ginzberg is remarkable given their diametrically opposed views.
We are taught not to speak ill of the dead, so the eulogies poured in about his love of family, devotion to his church, and the approbation of those who worked closely with him.
Common decency requires all of us to show respect for the man and the institution he represented for three decades.
But, as I’ve previously written in these columns, actions have consequences especially political actions.
Laws can enhance or detract from one’s quality of life and there are times when policy decisions can lead to suffering and even death. With this as background, let us look at the impact of some of Scalia’s votes on the Supreme Court.
In Bush v. Gore, 2000, the Supreme Court called a halt to recounting ballots in Florida, thus awarding the presidency to George W. Bush.
This was an interesting decision given conservatives opposition to an “activist court.”
It led to eight years of Bush, Cheney, Rumsfeld, Rove, and the war in Iraq.
How did Scalia vote? He voted with the 5-to-4 majority thus changing the course of U.S. history.
Ask any liberal what is the worst Supreme Court decision in recent history, and they will respond Citizens United v. Federal Election Commission, 2010.
This case held that corporations are people, limiting campaign contributions was a denial of free speech, and allowed SuperPACS to spend as much money as they could raise. In short, this case marked the beginning of oligarchy in America.
And so we ask, how did Scalia vote and did his vote make a difference? This was another 5-to-4 decision. Scalia voted with the conservatives on the bench profoundly altering the political landscape for decades to come.
In Lawrence v. Texas, 2003, the Supreme Court struck down a Texas statute that banned sodomy.
How the Texas Legislature planned to enforce the law without violating privacy rights is a mystery. But Scalia did not concur with his colleagues and wrote in dissent: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools…”
Had the majority agreed with Scalia, it would have enshrined bigotry and homophobia as the law of the land.
In a December 2015 oral argument about the future of affirmative action in higher education, Scalia shocked those in the courtroom with this statement: “…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 where they do well.”
This racist and inflammatory rhetoric, harkens back to an era when blacks were considered intellectually inferior to whites.
Scalia has been a consistent supporter of the death penalty.
He argues that there are some crimes which are so heinous and vile that they demand the ultimate punishment.
Dobie Gillis Williams was an African-American from Louisiana sentenced to die (by an all white jury) for killing a white woman.
Three years after his state-sanctioned murder, in Atkins v. Virginia, the Court ruled that executing people with mental disabilities (I.Q.s below 70) violated the Eighth amendment ban on “cruel and unusual punishment.
Williams did not have to die, but once the death penalty is carried out there are no “do-overs.”
In other cases, the “Innocence Project” has examined DNA evidence to prove that convicted murderers were, in fact, not guilty.
Scalia’s thinking here is mind-boggling. “Mere factual innocence is no reason not to carry out a death sentence properly reached.”
This mean-spirited logic holds that it is justifiable to execute an innocent person as long as the process followed the law.
In Wal-Mart v. Dukes, 2011, more than 1.5 million women filed a class action suit against the retail giant claiming gender discrimination.
Scalia, writing for the majority, ignored the statistical and anecdotal evidence of discrimination letting Wal-Mart off the hook. And when it came to women in the workplace getting equal pay, he wrote: “Certainly the Constitution does not require discrimination on the basis of gender. The only issue is whether it prohibits it. It doesn’t.”
Scalia always looks to the Constitution and the men who wrote it. If he can’t find it in the document or the writings of the Founding Fathers, for him it doesn’t exist.
Scalia did not conceive of the Constitution as a “living document.”
This despite the fact that it’s been amended 27 times; that our country has grown to 50 states; that legal slavery was ended; and that women are no longer viewed as property, but can vote, hold high office and even run for president. It is as if he were in a time warp, cemented in the past, incapable of realizing that the drafters of the Constitution could not possibly envision our world of scientific advancement and the miracles of technology.
Associate Justice Antonin Scalia used his power and authority to deny minority individuals their civil and human rights.
This “legal scholar and intellectual” was no friend of blacks, women and gays.
I ask the question: How should Scalia be remembered?
Was he a brilliant jurist or a man without a social conscience?
Dr. Hal Sobel
Great Neck
