FacebookTwitterGoogle+RedditEmail

Scalia: the Robert E. Lee of the Culture Wars

by

“Scalia Dead Following 30-year Battle with Social Progress.” So read the headline of the satirical Onionnewspaper in response to the news of the death of Supreme Court Associate Justice Antonin Scalia. The “Twitter-verse” was also aglow with irreverent responses to Scalia’s demise. Filmmaker Drew Emery, for example, tweeted, “I will not at all be surprised when the coroner confirms the cause of death as marriage equality. #Scalia.” If you have progressive friends on Facebook, you probably saw many sentiments similar to these.

Conservatives, of course, reacted to such expressions with righteous indignation. At the Republican Presidential Debate in South Carolina on Saturday night, candidate Ben Carson said, “We need to start thinking about some of the divisiveness that is going on in our country. I looked at some of the remarks that were made after finding out that Justice Scalia had died and they were truly nasty remarks.” The conservative Daily Wire website posted a headline that read: “Liberals Disgustingly Tweet Glee at Justice Scalia’s Death.”

Are these gleeful reactions to Justice Scalia’s death morally defensible? Are those reacting this way failing to treat the man with the level of dignity he deserves?

As I thought about these questions, my mind drifted – as it often does – to the ideas of the great abolitionist Frederick Douglass, who I have spent the last decade or so studying. More specifically, I thought about an editorial frederickdouglassDouglass published in October 1870 called “Death of a Perjured Traitor.” The occasion for the editorial was the death of Robert E. Lee, who was “one of the chief rebel generals” in the Civil War. Many political and cultural elites reacted to Lee’s death, Douglass wrote, with “ostentatious and noisy exhibitions of sympathy and grief.” Some of these elites praised Lee’s “great public virtues” and others said whatever one thought of Lee politically, he ought to be remembered for his “rare private virtues.”

Douglass, as you may have guessed from the title of his piece, was having none of this. When someone of Lee’s public stature dies, what matters is not how he performed in the world as a husband, father, brother, or friend. What matters, Douglass wrote, is what Lee stood for as a public man. Considered in this light, Douglass had “no sympathy to waste” and “not a regret to express over the death of this arch apostate.” Lee’s words and deeds during and after the Civil War revealed that his primary devotion was to undermining the dignity of African Americans and he had therefore earned the disrespect of those who care about “liberty, justice, and humanity.”

Antonin Scalia was the Robert E. Lee of the American culture war. He devoted the words and deeds of his public life to championing a set of ideas that placed him firmly on the conservative side of the many battles of that war. Like Lee, Scalia often found himself on the losing side and, like Lee, he “never ceased to mourn over the lost cause.”

Although Scalia’s views of abortion and affirmative action did much to establish his reputation as a conservative culture warrior, it was his resistance to gay rights that proved to be his defining battle. In the 1996 case of Romer v. Evans, the Supreme Court considered the constitutionality of a Colorado law that permitted local jurisdictions to allow discrimination on the basis of sexual orientation. The majority of the Court found this law to be inconsistent with the Constitution’s promise of “equal protection of the laws,” but Scalia offered a blistering dissent. “Of course,” Scalia wrote, “it is our moral heritage that one should not hate any human being or class of human beings.” But Coloradans weren’t guilty of hating a class of human beings, he proclaimed, they were simply expressing animus toward “homosexual conduct,” which like “murder,…polygamy, or cruelty to animals” has been the subject of “centuries old criminal laws.”

In the 2003 case of Lawrence v. Texas, the Court considered the constitutionality of a prohibition on “homosexual sodomy.” While the majority of the Court found the law to be inconsistent with the protection of liberty provided by the Fourteenth Amendment of the Constitution, Scalia once again found himself in dissent. The Court, he declared, was signing on to the “homosexual agenda” by depriving the people of the states the opportunity to express their “moral opprobrium” of homosexuality, which they believe to be on par with “fornication, bigamy, adultery, adult incest, bestiality and obscenity.” If the people of a state want to lock adults up for engaging in consensual sexual conduct, Scalia said, there was nothing in the Constitution stopping them from doing so.

At the conclusion of his Lawrence dissent, Scalia expressed worry that legal prohibitions of same-sex marriage would soon find their way to the Court and the cases of U.S. v. Windsor and Obergefell v. Hodgesproved him right. In Windsor, which dealt with the constitutionality of the federal Defense of Marriage Act, Scalia dismissed the idea that the exclusion of same-sex couples from the protection and recognition of marriage demeaned or humiliated anyone. The majority was simply asserting its legitimate power to “enforce traditional moral and sexual norms” by limiting marriage to one man and one woman. InObergefell, the Court struck down state prohibitions on same-sex marriage and, again, Scalia dissented. The majority decision was little more than a “judicial putsch” – a “naked” assertion of power in defiance of “the freedom of the people to govern themselves.”

In the realm of gay rights, Justice Scalia committed himself – time and again – to staking out positions that denied the equal dignity of all human beings. And it was this record, more so than any other aspect of the voluminous writings and decisions he leaves in his wake, that have inspired some to react to his death with irreverence and even hostility. When these decisions came up during public discussions or interviews, Scalia seemed to take a good deal of pride in his position as a curmudgeonly dissenter who was acting in accordance with his understanding of judicial duty.

Robert E. Lee and Antonin Scalia staked their legacies on conceptions of duty that put them at odds with movements that sought to move this country closer to the recognition of the equal dignity of all human beings. It is upon these views of duty that they, as public men, ought to be judged. They deserve nothing more and nothing less.

Screen Shot 2016-02-19 at 10.18.51 AM

Nicholas Buccola is Chair and Associate Professor of Political Science at Linfield College. His new book, The Essential Douglass, will be published by Hackett in March.

More articles by:
Weekend Edition
July 22, 2016
Friday - Sunday
Jeffrey St. Clair
Good as Goldman: Hillary and Wall Street
Joseph E. Lowndes
From Silent Majority to White-Hot Rage: Observations from Cleveland
Paul Street
Political Correctness: Handle with Care
Richard Moser
Actions Express Priorities: 40 Years of Failed Lesser Evil Voting
Eric Draitser
Hillary and Tim Kaine: a Match Made on Wall Street
Conn Hallinan
The Big Boom: Nukes And NATO
Ron Jacobs
Exacerbate the Split in the Ruling Class
Jill Stein
After US Airstrikes Kill 73 in Syria, It’s Time to End Military Assaults that Breed Terrorism
Jack Rasmus
Trump, Trade and Working Class Discontent
John Feffer
Could a Military Coup Happen Here?
Jeffrey St. Clair
Late Night, Wine-Soaked Thoughts on Trump’s Jeremiad
Andrew Levine
Vice Presidents: What Are They Good For?
Michael Lukas
Law, Order, and the Disciplining of Black Bodies at the Republican National Convention
David Swanson
Top 10 Reasons Why It’s Just Fine for U.S. to Blow Up Children
Victor Grossman
Horror News, This Time From Munich
Margaret Kimberley
Gavin Long’s Last Words
Mark Weisbrot
Confidence and the Degradation of Brazil
Brian Cloughley
Boris Johnson: Britain’s Lying Buffoon
Lawrence Reichard
A Global Crossroad
Kevin Schwartz
Beyond 28 Pages: Saudi Arabia and the West
Charles Pierson
The Courage of Kalyn Chapman James
Michael Brenner
Terrorism Redux
Bruce Lerro
Being Inconvenienced While Minding My Own Business: Liberals and the Social Contract Theory of Violence
Mark Dunbar
The Politics of Jeremy Corbyn
Binoy Kampmark
Laura Ingraham and Trumpism
Uri Avnery
The Great Rift
Nicholas Buccola
What’s the Matter with What Ted Said?
Aidan O'Brien
Thank Allah for Western Democracy, Despondency and Defeat
Joseph Natoli
The Politics of Crazy and Stupid
Sher Ali Khan
Empirocracy
Nauman Sadiq
A House Divided: Turkey’s Failed Coup Plot
Franklin Lamb
A Roadmap for Lebanon to Grant Civil Rights for Palestinian Refugees in Lebanon
Colin Todhunter
Power and the Bomb: Conducting International Relations with the Threat of Mass Murder
Michael Barker
UK Labour’s Rightwing Select Corporate Lobbyist to Oppose Jeremy Corbyn
Graham Peebles
Brexit, Trump and Lots of Anger
Anhvinh Doanvo
Civilian Deaths, Iraq, Syria, ISIS and Drones
Christopher Brauchli
Kansas and the Phantom Voters
Peter Lee
Gavin Long’s Manifesto and the Politics of “Terrorism”
Missy Comley Beattie
An Alarmingly Ignorant Fuck
Robert Koehler
Volatile America
Adam Vogal
Why Black Lives Matter To Me
Raouf Halaby
It Is Not Plagiarism, Y’all
Rev. Jeff Hood
Deliver Us From Babel
Frances Madeson
Juvenile Life Without Parole, Captured in ‘Natural Life’
Charles R. Larson
Review: Han Kang’s “The Vegetarian”
FacebookTwitterGoogle+RedditEmail