Click amount to donate direct to CounterPunch
  • $25
  • $50
  • $100
  • $500
  • $other
  • use PayPal
Spring Fund Drive: Keep CounterPunch Afloat
CounterPunch is a lifeboat of sanity in today’s turbulent political seas. Please make a tax-deductible donation and help us continue to fight Trump and his enablers on both sides of the aisle. Every dollar counts!
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:
Weekend Edition
May 18, 2018
Friday - Sunday
Andrew Levine
The Donald, Vlad, and Bibi
Robert Fisk
How Long Will We Pretend Palestinians Aren’t People?
Jeffrey St. Clair
Wild at Heart: Keeping Up With Margie Kidder
Roger Harris
Venezuela on the Eve of Presidential Elections: The US Empire Isn’t Sitting by Idly
Michael Slager
Criminalizing Victims: the Fate of Honduran Refugees 
John Laforge
Don’t Call It an Explosion: Gaseous Ignition Events with Radioactive Waste
Carlo Filice
The First “Fake News” Story (or, What the Serpent Would Have Said)
Dave Lindorff
Israel Crosses a Line as IDF Snipers Murder Unarmed Protesters in the Ghetto of Gaza
Gary Leupp
The McCain Cult
Robert Fantina
What’s Wrong With the United States?
Jill Richardson
The Lesson I Learned Growing Up Jewish
David Orenstein
A Call to Secular Humanist Resistance
W. T. Whitney
The U.S. Role in Removing a Revolutionary and in Restoring War to Colombia
Rev. William Alberts
The Danger of Praying Truth to Power
Alan Macleod
A Primer on the Venezuelan Elections
John W. Whitehead
The Age of Petty Tyrannies
Franklin Lamb
Have Recent Events Sounded the Death Knell for Iran’s Regional Project?
Brian Saady
How the “Cocaine Mitch” Saga Deflected the Spotlight on Corruption
David Swanson
Tim Kaine’s War Scam Hits a Speed Bump
Norah Vawter
Pipeline Outrage is a Human Issue, Not a Political Issue
Mel Gurtov
Who’s to Blame If the US-North Korea Summit Isn’t Held?
Patrick Bobilin
When Outrage is Capital
Jessicah Pierre
The Moral Revolution America Needs
Binoy Kampmark
Big Dead Place: Remembering Antarctica
John Carroll Md
What Does It Mean to be a Physician Advocate in Haiti?
George Ochenski
Saving Sage Grouse: Another Collaborative Failure
Sam Husseini
To the US Government, Israel is, Again, Totally Off The Hook
Brian Wakamo
Sick of Shady Banks? Get a Loan from the Post Office!
Colin Todhunter
Dangerous Liaison: Industrial Agriculture and the Reductionist Mindset
Ralph Nader
Trump: Making America Dread Again
George Capaccio
Bloody Monday, Every Day of the Week
Barbara Nimri Aziz
Swing Status, Be Gone
Samantha Krop
Questioning Our Declaration on Human Rights
Morna McDermott
Classrooms, Not Computers: Stop Educating for Profit
Patrick Walker
Today’s Poor People’s Campaign: Too Important Not to Criticize
Julia Stein
Wrestling With Zionism
Clark T. Scott
The Exceptional President
Barry Barnett
The Family of Nations Needs to Stand Up to the US  
Robert Koehler
Two Prongs of a Pitchfork
Bruce Raynor
In an Age of Fake News, Journalists Should be Activists for Truth
Max Parry
The U.S. Won’t Say ‘Genocide’ But Cares About Armenian Democracy?
William Gudal
The History of Israel on One Page
Robert Jensen
Neither cis nor TERF
Louis Proyect
Faith or Action in a World Hurtling Toward Oblivion?
David Yearsley
The Ubiquitous Mr. Desplat
FacebookTwitterGoogle+RedditEmail