FacebookTwitterGoogle+RedditEmail

The Pathological Dissents of Antonin Scalia

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: ecassel1@cox.net

 

More articles by:

January 16, 2019
Patrick Bond
Jim Yong Kim’s Mixed Messages to the World Bank and the World
John Grant
Joe Biden, Crime Fighter from Hell
Alvaro Huerta
Brief History Notes on Mexican Immigration to the U.S.
Kenneth Surin
A Great Speaker of the UK’s House of Commons
Elizabeth Henderson
Why Sustainable Agriculture Should Support a Green New Deal
Binoy Kampmark
Trump, Bolton and the Syrian Confusion
Jeff Mackler
Trump’s Syria Exit Tweet Provokes Washington Panic
Barbara Nimri Aziz
How Long Can Nepal Blame Others for Its Woes?
Glenn Sacks
LA Teachers’ Strike: When Just One Man Says, “No”
Cesar Chelala
Violence Against Women: A Pandemic No Longer Hidden
Kim C. Domenico
To Make a Vineyard of the Curse: Fate, Fatalism and Freedom
Dave Lindorff
Criminalizing BDS Trashes Free Speech & Association
Thomas Knapp
Now More Than Ever, It’s Clear the FBI Must Go
Binoy Kampmark
Dances of Disinformation: The Partisan Politics of the Integrity Initiative
Andrew Stewart
The Green New Deal Must be Centered on African American and Indigenous Workers to Differentiate Itself From the Democratic Party: Part Two
Edward Curtin
A Gentrified Little Town Goes to Pot
January 15, 2019
Patrick Cockburn
Refugees Are in the English Channel Because of Western Interventions in the Middle East
Howard Lisnoff
The Faux Political System by the Numbers
Lawrence Davidson
Amos Oz and the Real Israel
John W. Whitehead
Beware the Emergency State
John Laforge
Loudmouths against Nuclear Lawlessness
Myles Hoenig
Labor in the Age of Trump
Jeff Cohen
Mainstream Media Bias on 2020 Democratic Race Already in High Gear
Dean Baker
Will Paying for Kidneys Reduce the Transplant Wait List?
George Ochenski
Trump’s Wall and the Montana Senate’s Theater of the Absurd
Binoy Kampmark
Dances of Disinformation: the Partisan Politics of the Integrity Initiative
Glenn Sacks
On the Picket Lines: Los Angeles Teachers Go On Strike for First Time in 30 Years
Jonah Raskin
Love in a Cold War Climate
Andrew Stewart
The Green New Deal Must be Centered on African American and Indigenous Workers to Differentiate Itself From the Democratic Party
January 14, 2019
Kenn Orphan
The Tears of Justin Trudeau
Julia Stein
California Needs a 10-Year Green New Deal
Dean Baker
Declining Birth Rates: Is the US in Danger of Running Out of People?
Robert Fisk
The US Media has Lost One of Its Sanest Voices on Military Matters
Vijay Prashad
5.5 Million Women Build Their Wall
Nicky Reid
Lessons From Rojava
Ted Rall
Here is the Progressive Agenda
Robert Koehler
A Green Future is One Without War
Gary Leupp
The Chickens Come Home to Roost….in Northern Syria
Glenn Sacks
LA Teachers’ Strike: “The Country Is Watching”
Sam Gordon
Who Are Northern Ireland’s Democratic Unionists?
Weekend Edition
January 11, 2019
Friday - Sunday
Richard Moser
Neoliberalism: Free Market Fundamentalism or Corporate Power?
Paul Street
Bordering on Fascism: Scholars Reflect on Dangerous Times
Joseph Majerle III – Matthew Stevenson
Who or What Brought Down Dag Hammarskjöld?
Jeffrey St. Clair - Joshua Frank
How Tre Arrow Became America’s Most Wanted Environmental “Terrorist”
Andrew Levine
Dealbreakers: The Democrats, Trump and His Wall
FacebookTwitterGoogle+RedditEmail