Scalia’s Judicial Activism: a Supremely Reactionary Voting Record

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As the Obama administration begins its struggle with the Republican Senate over the appointment of the next justice to the Supreme Court, it’s worth reflecting on the teachable moment that is Antonin Scalia’s passing. The late Supreme Court Justice is being lionized in the press, and the myth of Scalia is now beginning to emerge. Much has been made of his alleged commitment to “judicial restraint,” implying that Americans should be mourning the passing of a great legal mind.

Recent comments in the media appear increasingly sycophantic. Noah Feldman of Bloomberg News writes that: “Under Scalia’s conception of law and the Constitution was a vision of the limited, restrained job of judges: not to make the law just, but to apply it impersonally.” The Chicago Tribune editorializes that “Scalia was a passionate and formidable advocate for a jurisprudence that stressed the importance of leaving most issues to elected leaders rather than judges.”

Republican Speaker of the House Paul Ryan argues that “Scalia did more to advance originalism and judicial restraint than anyone in our time,” while Texas Governor Greg Abbott calls Scalia an “unwavering defender of the written Constitution…he was the solid rock who turned away so many attempts to depart from and distort the Constitution.”
Numerous Republicans and conservative pundits champion the concept of “judicial restraint.” Common definitions include the following:

*The belief that federal judges, since they’re unelected, shouldn’t “legislate from the bench,” and that they should not challenge the prerogatives of the elected branches – the executive and the legislature.

*The idea that judges are legal specialists and practitioners, not politicians, and that they shouldn’t make policy; rather they should use their power sparingly and only strike down laws or presidential acts when they are obviously unconstitutional.

*The notion that judges should objectively and mechanically interpret and apply “the law” as it is written, in an uncontroversial manner and without prejudice. One should never use personal ideology or policy preferences to influence one’s rulings.

The definitions above have little bearing on reality. Political scientists have long documented that values, experiences, beliefs, and ideology inevitably work their way into jurists’ legal decisions. This should be a rather obvious point, although conservative politicians and pundits have made careers out of claiming that justices can somehow divorce their rulings from the personal values that influence how they see reality and how they interpret the law.

Scalia’s doctrine of judicial restraint had little to do with his decisions as a Supreme Court justice. Scalia’s reputation as a corporate crusader and right-wing culture warrior was well earned through numerous decisions that flew in the face of judicial restraint. A review of Scalia’s greatest hits puts his record as a reactionary activist into perspective.

Selecting the President

In the 2000 case of Bush v. Gore, Scalia demonstrated that he wasn’t beyond playing blatant partisan politics and manipulating the outcome of a presidential election. In that case, Scalia voted with the court majority to end the Florida vote recount, essentially handing all of Florida’s electoral delegates to George W. Bush. The court (by a 7-to-2 vote) justified the decision by claiming that the recount violated the 14th Amendment’s Equal Protection Clause (and individuals’ right to have their votes re-counted equally) because the state’s counties employed different standards for recounting votes, and that there was (allegedly) not enough time to establish a uniform vote count method prior to Bush’s ascension to the President’s office. A number of the court’s judges signaled support for sending the case back to the Florida Supreme Court to establish a uniform method for a recount across counties, although the court’s conservative majority voted against this option.

Of course, the court’s 14th Amendment claim, if universally applied across the United States, would have invalidated all vote recounting methods in the U.S., since there was no uniform standard applied across the 50 states. The Supreme Court knew this, which is why they limited the applicability of their ruling exclusively to the case of Bush v. Gore, exempting all other states from the decision and from the court’s 14th Amendment claim. The ruling played out along partisan lines, with the Supreme Court’s five conservatives voting to hand the election to Bush, and the court’s liberals voting to continue the recount. Bush v. Gore will be remembered as one of the most nakedly partisan, blatant power grabs by the Supreme Court in American history. It is a dark stain on Scalia’s record.

Campaign Finance Law

Few issues demonstrated Scalia and the conservative court majority’s contempt for judicial restraint than the now infamous case of Citizens United v. FEC (2010). In that case, Scalia voted with the court’s other conservatives (5-to-4) to strike down the section of the 2002 Bipartisan Campaign Reform Act (BCRA) which prohibited issue ad spending by corporations and other organizations in the 60-day run-up to general elections and the 30-day run-up to primary elections. This provision of the law was created in an effort to try to limit the growing role of money in election campaigns.

Scalia’s legal reasoning for rejecting the BCRA’s issue ad ban was that it violated the “right” of corporations (which the court looks at as legal persons) to freely communicate their positions under the First Amendment’s protections for freedom of speech and expression. The legal reasoning for the case was rejected by a large majority of Americans familiar with the ruling, as Pew Research Center polling from 2012 found that two-thirds of American voters familiar with Citizens United thought it would have a negative effect on elections.

The most common criticism of the ruling I hear from Americans today is as follows: if money is free speech, then this means that wealthy Americans benefit from a whole lot of free speech, while poor, working class, and middle class Americans who don’t have money for campaign ads benefit from no free speech at all. The Citizens United case is a strong example of Scalia and the conservative majority’s contempt for judicial restraint. What is more activist than striking down Congressional laws in pursuit of a narrow, reactionary interpretation of the First Amendment that favors corporate power over the wishes of the masses?

Health Care Reform

The case of National Federation of Independent Business v. Sebelius (2012) represented the Supreme Court’s judgment of “Obamacare” and whether it could be legally justified under the Constitution’s Commerce Clause and Taxation Clause. Scalia, along with four other judges, voted against justifying the mandate requiring individuals to buy insurance from private health insurance companies, which the Obama administration justified under the Commerce Clause. The logic invoked by the court majority was that the Obama administration was compelling individuals to buy a product, and threatening a fine if they did not – hence punishing a negative action (not buying insurance). This action could not be justified under the Commerce Clause, since the clause references regulating commerce, rather than creating commerce or punishing inaction (not engaging in commerce). Scalia voted along with three other judges to overturn the law, specifically by rejecting Obama’s claim that the government’s $695 fine (for not purchasing insurance) merely represented an example of the power to tax citizens, since a fine (they alleged) was not the same as a tax. Of course, the law was allowed to stand, since a majority of judges (5-to-4) voted that the fine fell under the government’s Constitutional taxation powers.

I’ve gone on record numerous times criticizing the Obama health care law as bad policy. I see it largely as a corporate boondoggle and at best as a band aid that is masking the larger problem of for-profit health care in the United States that is gouging Americans blind. My position against “Obama-care” notwithstanding, there is room to question Scalia’s actions in the Sebelius case. His effort to overrule the Affordable Care Act represents a blatant example of judicial activism, as judicial restraint would have necessitated a refusal to strike down Congressional law. Instead of exercising restraint, Scalia embraced his own conservative interpretation of the Commerce Clause and Taxation Clause.

Gay and Lesbian Rights

Arguably the most noxious of Scalia’s judicial decisions are the cases of Lawrence v Texas (2003) and Obergefell v Hodges (2015). In Lawrence v Texas, the court’s majority (by a 6-to-3 vote) held that state anti-sodomy laws represented a violation of individuals’ right to equal protection and due process protections under the 14th Amendment, since such laws were being applied only to gay and lesbian individuals and not to heterosexuals. The due process clause guarantees that no state shall “deprive any person of life, liberty, or property, without due process of law.” In this specific case, the right to engage in consensual sex with someone of the same sex was classified by the Supreme Court as a fundamental part of individuals’ right to liberty. Similar legal reasoning was used in the case of Obergefell v Hodges, with the court’s majority invoking 14th Amendment due process and equal protection claims in striking down state laws prohibiting same-sex marriage.

Scalia’s role in these cases was one of the uninhibited culture warrior, voicing blatantly bigoted and homophobic stereotypes in order to justify denying equal rights to all regardless of sexual orientation. In the Lawrence case, much of Scalia’s justification for denying equal rights had little to nothing to do with legal reasoning at all, and was clearly driven by his hatred of gay and lesbian individuals. Scalia compared the legalization of same-sex intercourse to the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He attacked the court’s majority for having “signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia attacked the court’s majority view as outside the U.S. mainstream, and railed against the “invention of a brand-new ‘constitutional right’” of gay and lesbian individuals not to be discriminated against based on their (consensual) sexual acts. His reasoning was empirically false, considering that Gallup polling from 2003 found that 60 percent of Americans supported the elimination of anti-sodomy laws. The elimination of anti-sodomy laws, then, was perfectly within the mainstream of American political values.

Scalia intensified his attacks on gay and lesbian individuals in the Obergefell case. Scalia was clearly out of touch with majority public opinion in Obergefell, considering most Americans supported same-sex marriage by 2015. This didn’t defer the late justice. If the Supreme Court was to legalize same-sex marriage, he pontificated, what would stop the court from legalizing other deviant behavior? In Scalia’s own words, “what about pederasts?” “What about child abusers?” The “deserving minority” of child abusers, he sarcastically claimed, could also claim protections under the 14th Amendment’s Due Process and Equal Protection clauses in the wake of Obergefell. The attempt to associate homosexuality with child molestation and child abuse is an old con and a hateful tactic of the religious right, which has long been rejected for lack of empirical evidence by groups like the American Psychiatric Association and the American Academy of Child and Adolescent Psychiatry, and by any other human beings with an ounce of sanity.

Scalia, the Reactionary Activist

Scalia’s brand of judicial restraint was never more than an opportunistic, high-minded rhetorical defense of the American right’s reactionary political, economic, and social agenda. Scalia unashamedly voiced his support for judicial activism in cases that he felt would further the interests of the conservative-right, and used the language of “restraint” to suppress court efforts to rule in a progressive direction on major legal questions. In reality, Scalia and other conservatives’ calls for restraint amounted to little more than a bitter complaint that “my side didn’t win” in cases when conservative legal positions failed to carry the day. There is little to celebrate in such opportunistic, cynical legal thinking.

This is not to say that the concept of judicial restraint is without meaning. Legal scholar Gerald Rosenberg argues convincingly in his book, The Hollow Hope that the federal courts have proven themselves largely unwilling throughout American history to challenge the political-economic status quo. Putting faith in the courts to fight for progressive change often amounts to a “hollow hope,” in that members of the Supreme Court prefer to act in favor of progressive change only after the other branches (themselves being pressured by progressive social movements) have already begun to act. Rosenberg’s findings speak to a larger point: the courts have, in fact, exercised judicial restraint over the centuries, but typically in favor of the interests of powerful societal elites. They have often failed to play a leading role in campaigns to promote equality between people, regardless of race, sex, and sexual orientation.

Scalia’s real legacy lies in promoting a variant of judicial restraint that refuses to challenge the neoliberal agenda of American political-economic elites or the cultural values of the reactionary right. Moving forward, his tenure is likely to be looked at with hostility and derision by the public, with Scalia himself a relic of a bygone era.

Anthony DiMaggio is Associate Professor of Political Science at Lehigh University. He is the author of Rising Fascism in America: It Can Happen Here (Routledge, 2022), in addition to Rebellion in America (Routledge, 2020), and Unequal America (Routledge, 2021). He can be reached at: A digital copy of Rebellion in America can be read for free here.