In an article in the July 6, 2003 Washington Post, Lincoln Caplan, editor of Legal Affairs Magazine, wrote an apology for Antonin Scalia’s dissents from the court’s majority opinions. As my readers know, I take issue with virtually all of Scalia’s positions, but I respect his right to differ with the majority of the Court. What I do not respect is Scalia’s mean-spirited insults of his colleagues and litigants, his dire predictions that the world will implode as a result of whatever majority decision he disagrees with, and his obvious hatred of civil liberties.
While Caplan does mention Scalia’s “derisive” tone, he missed the mark by comparing Scalia’s dissents to the great dissents of the past.
David Broder, the Washington Post columnist that gets my vote for integrity, reason, and fairness, criticized Scalia in an article published June 29, 2003. Broder decries Scalia’s harsh and angry tone in the Lawrence v. Texas and University of Michigan cases, recounting Scalia’s comment in oral argument in the Michigan cases that if Michigan wanted diversity in the law school it should “lower its standards” so “anyone” could get in. Broder’s was the only media comment that I heard about this unforgivable insult directed at the law school and its would-be minority applicants.
Broder compares Scalia’s scaremongering to the racist Jesse Helms, a response to Scalia’s comment in the Michigan dissent that the majority opinion leads the way to “racial discrimination” in public and private employment, adding sarcastically that he was sure that “the nonminority individuals who are deprived of a legal education, a civil service job or any job at all by reason of their skin color will surely understand.” Says Broder, “Scalia’s scare-tactic scenario constitutes almost as naked an appeal to racial antagonism. It’s not what you expect to hear from a justice of the Supreme Court.”
Recalling that Bush said that Scalia is his model for Supreme Court nominees, Broder calls for Bush to get a new model. Scalia has let it be known that he wants to be Chief Justice when Rehnquist retires. Caplan admits that Scalia’s harshness may render him less likely to rise to Chief Justice status; Broder goes even further and says he is unfit for the job. As an attorney, I find Scalia’s tone and language to be inappropriate for an attorney or judge. He resorts to personal attack, hyperbole, and insults directed at his colleagues and the litigants.
Caplan describes Scalia as an “intellectual leader” on the court. It is more accurate, in my opinion, to see him as intellectually dishonest, something I wrote about in discussing his dissent in Lawrence v. Texas. He made it sound as if there are still laws against masturbation, and I will be darned if I know a state where that is true. He predicted that the decision would lead to sanctioning of incest and pedophilia, and that is downright disturbing.
Caplan refers to Scalia’s dissents as part of the “grand tradition” of dissents penned in Plessy v. Ferguson, Brown v. Board of Education, and Olmstead v. United States. But there is a flaw in that analogy: those dissents called for adherence to the 14th and 4th amendments. They were a call to the future, not a rant to return to the past.
Scalia’s dissents are filled with hateful invective. But then, so is much of what is written by the extreme right-wing ideologues like Ann Coulter. Indeed, Scalia’s opinions share more with Coulter and the late Barbara Olson’s mindless attacks and fact-devoid opinions than legitimate dissent. Why engage in reasoned debate when dishonest diatribe will sell more books, garner more readers, and, in Scalia’s case, endear him to Bush, Santorum, Ashcroft, and Frist?
Scalia insists that the societal mores that lead to decisions like Lawrence (and also, Bowers, for the law is, as Lawrence Friedman says, a social history) are invalid unless they are his values. That is what makes him a frightening justice. His public speeches (when he lets the press in, as he is loathe to do) and his writings in Catholic publications indicate that none but himself and the likes of him are fit to sit in judgment of the rest of the country. That his ideology should rule the country is a horrifyingly narcissistic and unacceptable in a democracy.
The depth of Scalia’s anger at the courts decision in Lawrence is seen in his attack on law professors, whom he accuses of “buying into” the homosexual-rights agenda. As reported by Law.com, Scalia expresses outrage that the American Association of Law Schools denies membership to law schools who refuse to take an anti-anti-gay discriminatory stance, a position Scalia finds repulsive. Scalia dropped his membership in the American Bar Association back in the 1980s when it took a position against gay discrimination.
Caplan seems to think that Scalia’s invective is born of intellectual differences with how his “brethren” interpret the law. Broder suggests that Scalia comes close to inviting racism and homophobia as national policies.
Scalia was clearly infuriated by the majority opinions in the Michigan and sodomy cases. His angry outbursts indicate a deep-seated pathology that makes him unfit to ever be Chief Justice. It is a pity that he is on the bench at all.
ELAINE CASSEL practices law in Virginia and the District of Columbia and teaches law and psychology. She is writing a book on civil liberties post 9/11, and keeps an eye on Bush and Ashcroft’s trampling on the Bill of Rights at her Civil Liberties Watch. She would love to write a book about Scalia’s jurisprudence, but finds it too depressing. She can be reached at: firstname.lastname@example.org