Speaking ill of a dead Supreme Court injustice

February 18, 2016

The malignant record of Antonin Scalia is being defended and downplayed, even by some liberal figures. Aaron Amaral explains why we better speak truth to power.

AMONG OTHER appropriate descriptions, the ding-dong-he's-dead Supreme Court Justice Antonin Scalia was a racist, a misogynist, an imperial apologist for torture and a homophobe. While that sentence may still represent a minority position, at least in mainstream politics, it is gaining some steam.

Scalia embodied the defense of a particular, anti-democratic legacy of our colonial settler state, one which more than 225 years ago gave rise to the U.S. Constitution. He was "an originalist," premising his defense of the Constitution on the supposed "original intent" of its slaveholding authors.

This approach to constitutional law provided the key tool and political cover for Scalia to lead the charge at codifying in law the 40-plus years of political retreat and defeat since the high point of the 1960s and early '70s social movements. He bears a significant responsibility for the injustices endured today by working class people, women, immigrants, LGBTQ people and the African American community.

Supreme Court Justice Antonin Scalia
Supreme Court Justice Antonin Scalia

For example, as the longest-standing bulwark of reaction on the Supreme Court, Scalia voted with the conservative majority of justices in 2013's Shelby County v. Holder to gut the historic Voting Rights Act, overturning one of the key victories of the civil rights movement that facilitated Black electoral participation. Scalia ignored the history of racist voter disenfranchisement and referred to the Voting Rights Act as simply built upon a "racial entitlement" to African Americans.

Late last year, in oral arguments for a well-publicized case that threatened to overturn the University of Texas' affirmative action plan, the depths of Scalia's racism became apparent:

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. One of the briefs pointed out that most of the Black scientists in this country don't come from schools like the University of Texas...They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.

I'm just not impressed by the fact that that the University of Texas may have fewer [Black students]. Maybe it ought to have fewer...I don't think it stands to reason that it's a good thing for the University of Texas to admit as many Blacks as possible.

While this case, like the anti-union Friedrichs v. California Teachers Association, will likely not come to a vote in this term of the Court, it was another in a long line of cases decided during Scalia's tenure that was designed to limit anti-racist affirmative action programs.

AS WITH voting rights and affirmative action, Scalia led the charge in broadly curtailing women's reproductive rights. In a 2011 interview, he called the landmark Roe v. Wade decision legalizing abortion an "absurdity," adding, "You want a right to abortion? There's nothing in the Constitution about that."

And in a dissenting opinion written in the 1996 case of Romer v. Evans, which overturned a Colorado state constitutional amendment that sought to disallow gays and lesbians from receiving equal protection under the law, Scalia wrote:

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. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct.

Similarly, in his dissent in last year's case of Obergefell v. Hodges, in which the Supreme Court held in a 5-4 decision that the fundamental right to marry is guaranteed to same-sex couples by the Constitution, Scalia referred to a "judicial Putsch" that poses a "threat to American democracy."

It is worth acknowledging the profound contradiction that Scalia often couched his decisions in language which pretended to recognize the prerogatives of legislative bodies, yet did so with a wink and a nod to how profoundly undemocratic such bodies are. Thus, in his Obergefell dissent, he wrote:

It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

But it was Bush v. Gore--the decision by which the U.S. Supreme Court stole the 2000 presidential election for war-criminal-in-waiting George W. Bush by awarding him a victory in the disputed election in Florida when it was clear that a full recount would give the nod to Gore--that represents Scalia's most direct expression of contempt for democracy.

The 5-4 decision is widely recognized as a travesty and a prime example of right-wing judicial activism. But when confronted with criticism of the majority decision--a vote that Scalia's fellow Reagan nominee Justice Sandra Day O'Connor now says she regrets--Scalia famously responded "get over it." So much for his concerns with democratic rights.

Scalia's open advocacy of the power of the economic and political elite at the expense of democracy extended even to his final days.

He was found dead at the posh Cibolo Creek Ranch in western Texas, where he was on vacation for free as a gift from the ranch's owner, John B. Poindexter. According to the Washington Post, the Supreme Court last year declined to hear a case in which a company connected with Poindexter was accused of age discrimination. Apparently, Scalia didn't mind accepting a show of gratitude.

BUT WITH plenty of Scalia obituaries already written, what is telling are the tributes from people ostensibly opposed to Scalia's virulent, reactionary politics. For example, commentator Corey Robin quoted liberal law professor Cass Sunstein on Twitter: "Devastated by Justice Scalia's death. One of the most important justices ever, a defender of the Rule of Law, and a truly wonderful person."

Why the praise, sadness and condolences issuing from those on the liberal left who should know better?

This honoring of Scalia as a judicial giant, despite his manifest and malignant intelligence, is dangerous political theater, part of the legacy of Scalia's service to the status quo. Respect, respectability and implicit pledges of commitment to the rules of the game and the institution of the Court are the gloss that colors these obituaries, as well as the partisan battles over his successor.

Even more insidiously, they have hastened the inevitable return to center-stage of the politics of lesser evilism. What, after all, say the liberal legitimizers of Scalia, could be more important than electing a Democrat to the White House next November, so that she or he can nominate Scalia's successor.

Thus, Katrina vanden Heuvel, editor and publisher of the Nation magazine, having endorsed Bernie Sanders for the Democratic presidential nomination, tweeted on the day the news broke of Scalia's death--along with condolences to his family--that this "transforms [the] election[s]." Days later, the lead story in the Nation was titled, "The Supreme Court Is the Most Important Issue in the 2016 Election."

For its part, the Democratic National Committee (DNC)--having just lifted a ban on donations from federal lobbyists and political action committees to raise funds for a joint "Hillary Victory Fund" with the Clinton campaign--responded to Scalia's death with a fundraising effort to push for Obama to nominate a successor to Scalia.

As is generally the case with the politics of lesser evilism, this new pitch to win support for the Democrats ignores how the Supreme Court has moved further to the right throughout the last four decades, under Republican and Democratic presidents alike--reshaping legal precedents, strengthening the hands of the state and corporate and monied interests, while the political center of debate has moved further and further to the right.

It is a hard truth, seldom acknowledged among liberals, that federal court appointments under the Obama and Clinton presidencies were far more "centrist" than juridically or politically "progressive", especially when compared to the reactionary ideologues, like Scalia, that Republican presidents have succeeded in installing since Ronald Reagan.

So it is no surprise that media speculation on likely Obama nominees to replace Scalia all focus on "moderate" candidates, acceptable to the Republican establishment. These judges and justices have further reinforced a rightward moving political and legal consensus.

Can anyone imagine Scalia recommending that a Republican president replace a liberal justice of the Supreme Court with anything other than a reactionary cut from the same mold as him?

AT A moment when Bernie Sanders' calls for a "political revolution" are gaining a mainstream hearing, discussions of fundamental structural and institutional changes to the institutions of U.S. democracy, including the courts, are welcome.

Antonin Scalia personified a reactionary political agenda, not just in the slew of judicial positions he took against the interests of working people, the oppressed and basic institutions of democracy, but in legitimizing "originalist" legal interpretations that seek to enshrine the federal judiciary as the final and everlasting defender of a reactionary historical legacy. Every one other than the country's ruling elite needs to reject that legacy and its champions like Scalia.

But our opposition must be based on more than simply ensuring that the Democratic Party can choose its own guardian of this less-than-hallowed institution.

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