I attended a university where Antonin Scalia taught, and he had many friends remaining among the faculty. When he visited to speak at the law school, I declined to apply for the very sought-after tickets, because I did not want to be in the same room with him.
It’s not because he’s a homophobe. It’s not because he consistently votes against reproductive rights. It’s not because he believes in a sweeping interpretation of the Fourth Amendment in the context of criminal investigations - because hey, that last one has really helped me out professionally. I love a good case protecting marijuana growers from new technology. I didn’t want to be in his presence because he’s a goddamn hypocrite.
Nino, as his friends call him, proclaims a belief in constitutional “originalism,” a viewpoint that fails to acknowledge that the bulk of the document was written and amended in a country that bears no resemblance to the one we live in today. The decisions, dissents, and idiotic screeds he writes don’t honor that vision of the Constitution at all. What they do, as Kept Simple wrote on Gawker last week, is function as rants from someone promoting his politics from a pulpit where he’s virtually untouchable.
This week, in case you live under a rock, and a few feet under that rock and the layers of sediment that covered it, and wore noise-canceling headphones and also don’t have Internet or TV service and are somehow reading this anyway, Antonin Scalia, big opera fan and fun hunting buddy, released a dissent Friday saying the decision to allow gay marriage in the remaining 13 states banning it was “a threat to democracy.”
If he means this deep down in his cold, cold heart, I’m not sure why he seems to believe that the United States should practice old-style Greek democracy with a vote on every issue. We don’t live in a direct democracy (a form of government the Economist rightly points out doesn’t even work on the state level), but rather a federal republic. We elect leaders by popular vote and charge them with making law. We also elect a President who appoints Supreme Court justices, Scalia among them, to review the constitutionality of laws passed by the legislature and actions by the President. It’s a shame that someone charged with understanding and interpreting the Constitution doesn’t understand basic civics.
So our poor Nino lives in a federal republic with elected representatives, an executive branch he doesn’t like much when it isn’t run by a Republican, and his own terrible activist institution that elected a goddamn President instead of respecting the popular vote. (I love this succinct Letter to the Editor I found on the website of the Des Moines Register - says it all.) Surely politics had nothing to do with Bush v. Gore - it’s just his interpretation of the Constitution, along with the notion that corporations are people and the clause about militias in the 2nd Amendment really means everyone gets their own personal handgun.
Last week, from the losing side, we heard calls for religious liberty. We heard that the issue should be left up to the states. All of these believers, along with their patron saint Antonin, disrespect the legacies of the founding fathers they claim to revere. By calling for voters in each state to decide the rights of targeted groups, they fly in the face of John Adams and other founding fathers, who warned against the tyranny of the majority. A legal commentator from Alaska explained in Alaska Dispatch News last year how the court system is designed to protect us from this very disaster.
If he can’t be bothered to review The Federalist Papers, I wish Scalia would read a key cite from 9th Circuit Court Judge Vaughn Walker’s masterful smackdown of Prop 8. West Virginia State Board of Education v. Barnette, in 1943, affirmed the right of students, on the basis of religious objection, to decline to salute the American flag during the Pledge of Allegiance recitation in the state’s classrooms. The requirement had been enacted by the legislature and mandated by school boards. A group of Jehovah’s Witnesses sued. In the resulting opinion, the Supreme Court in essence struck down the majority’s right to compel a gesture that violated the Witnesses’ ban on saluting symbols, underscoring the First Amendment’s guarantees of free speech and expression. That decision reverberates today, as a recent incident in Florida shows.
“Fundamental rights may not be submitted to [a] vote; they depend on the outcome of no elections,” Justice Jackson wrote back in 1943. Judge Walker reached back to Barnette perhaps as a nod to Kennedy’s 1996 opinion in Romer v. Evans, in which this week’s crucial swing voter wrote an opinion invalidating a Colorado ballot initiative that declared by popular vote that LGBT individuals did not belong to a so-called “protected class.” While Kennedy didn’t cite Barnette in his Romer opinion, he arguably followed its precedent.
It’s hard to imagine that Mr. Scalia and his allies would disagree when a right they deem fundamental, a right they care about deeply, was put to a vote, and then taken away. Think how it would feel to them if the assault on Christianity they imagine were actually real; if their right to practice their religion as they chose were taken away by ballot box. My guess is they would ask the Court to step in and save them.
A note: I had prepared a super fun post on life sentences and foreign serial killers, but couldn’t resist the opportunity to pile on this disgruntled dissenter. You’ll just have to wait! My apologies for the multiple pictures of Scalia that appear in this post.
Thanks for reading.