Supreme Court Justice Antonin Scalia has received due praise from many quarters following his untimely death on February 13. Fellow jurists, academics, former clerks and politicians of many stripes have lauded his three decades of service. But not much attention has been paid to the impact of his unique jurisprudence on cases important to racial justice, reproductive rights, fair elections and LGBTQ equality.
Scalia was the longest serving member of the Court, having been nominated by President Ronald Reagan in 1986. But he should be remembered most for ushering in a period of legal conservatism that has shaped decisions on crucial social issues, whether he was voting with the majority or waving the flag of frustrated, and often angry, dissent.
A Conservative Judicial Superstar
When Scalia joined the Court, he brought a clearly defined conservative philosophy that had been carefully nurtured as part of a larger ideological campaign sparked by the dramatic defeat of the Barry Goldwater-led GOP in 1968. By the early 1970s conservatives had embarked on a long-range plan to retake the White House and to spread conservative power to both the legislature and the courts. The famous Powell memo of 1971 called for the more active and coordinated use of corporate influence and its substantial capital to set up conservative think tanks. One arm of this effort was the establishment of the Federalist Society in law schools in 1982, with then-professor Scalia as one of the first faculty advisors. While its purpose was to champion libertarian views and curtailment of what it saw as big government, it also designed to cultivate a cadre of lawyers who would eventually ascend into legal education and the bench. The object was to jettison what they saw as the liberal trend of the Warren Court.
Scalia would soon emerge as one of this camp’s most influential jurists. He argued, forcefully and often eloquently, for a Constitutional interpretation based on strict adherence to the language of the text. If the Constitution didn’t cover a law in question, he turned to the meaning of its text at the time when it was drafted. Otherwise he argued, judges would interpret the Constitution based on their own, often liberal, views, usurping the role of the legislature to make value-based choices. Scalia argued that the law should be based on the clear language of the Constitution. and where interpretation was unavoidable, cases should be based on bright-line rules.
Scalia’s Constitutional “Originalism”
This “originalist” approach stood in contrast to the liberal theory of a living Constitution. This theory held that judges should start with the original text but bring that language into a modern context so that it could apply to situations that the founders never dreamed about.
There have been volumes written about these and other judicial philosophies. But what is significant about Scalia’s advocacy for originalism is that it reflected a broader critique of politics that had championed advances in civil rights, criminal justice, the New Deal regulatory state and the struggle for gender equality.
It became clear that competing views of Constitutional interpretation were not just the subject of academic debate. They would soon influence the outcome of some of the most critical cases of the last quarter century. Issues such as abortion rights, the death penalty, criminal justice reform, affirmative action, voting rights and others soon demonstrated the degree to which the court was part of a larger power struggle ushered in by the Reagan revolution. Scalia’s tenure on the court demonstrated that he was not just a foot soldier in this battle, but one of its generals.
None of the justices on the Supreme Court have the room as politicians to push their agenda and Scalia was no different. If you look at some of the hundreds of decisions that he was a part of, you will find anomalies to uniformly liberal or conservative philosophies.
But on balance, he was one of the most persuasive and dominant conservative voices of his day. Scalia’s intellect, wit and often scathing sarcasm advanced his agenda. But this very personal banner of liberty that drove his opinions never seemed to fully embrace people of color, women, the LGBT community and working-class folk in general.
Scalia had no problem excoriating his liberal colleagues for making up Constitutional principles from whole cloth, but he did exactly the same thing when the outcome he sought firmly reflected his conservative ideology.
Election Spending and Corporate Personhood
No case illustrates this contradiction more than Citizen’s United v. Federal Election Commission. While Justice Scalia did not write the majority opinion, the fingerprints of his originalism are all over it.
In that infamous case, the court held that corporations had free-speech rights protected by the First Amendment and so congressional limits on their campaign spending was unconstitutional. This decision has left the political landscape awash in money, mostly from the wealthy and their super PACs.
An Expanded Right to Bear Arms
In 2008 in District of Columbia v. Heller, a major right-to-bear-arms case, Scalia wrote the majority decision that overturned almost 100 years of federal court precedent. He embraced a long-held principle of the right wing that buying and owning a gun was an individual right subject to very few, if any, restrictions. For years, the Second Amendment pronouncement, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed,” had been understood to mean that gun ownership could be regulated by the states. But Scalia, in applying a very questionable interpretive scalpel, separated that clause from the rest of the sentence and elevated “the right of a people to keep and bear Arms” to a level of Constitutional protection that no other court had. We have seen the results of Heller as gun sales and gun-related deaths are both on the rise.
Jeopardizing Voting Rights
In the field of voting rights and affirmative action Scalia never saw a statute or practice protecting minorities that he was not eager to overturn. In Shelby County v. Holder, he joined the other conservatives on the court to rule that the pre-clearance section of the act was unconstitutional. The basic rationale of the court was that subjecting voting districts’ proposed changes for Department of Justice review because of an earlier history of racial discrimination was a burden that was no longer justified. But as soon as this decision was announced, states began to pass voter ID laws and other new registration requirements that they only discovered were necessary after the historic turnout of voters of color in 2008.
Opposing Abortion Rights and Women’s Equality
On issues of abortion rights and women’s equality, Scalia’s voice in opposition has been loud and clear. In the seminal case of Planned Parenthood v. Casey, which upheld the “basic principles of Roe,” Scalia’s scathing dissent became a banner for right-wing opposition to abortion rights. In Webster v. Reproductive Health Services, another effort to overturn abortion rights in Scalia attacked Justice Sandra Day O’Connor’s pro-choice opinion as one that “cannot be taken seriously.” O’Connor, he wrote, “preserves a chaos that is evident to anyone who can read and count.”
His more liberal female colleagues drew his ire on more than a few occasions. In United States v. Virginia, he dissented from the majority opinion by Justice Ruth Bader Ginsberg. This decision is widely credited for strengthening Constitutional protections against gender discrimination, and removing gender barriers in a host of institutions, especially the military. In arguing in favor of the all-male military school Scalia declared, “Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.”
A Distaste for Affirmative Action—and Liberal Colleagues
Scalia vehemently opposed any use of race in higher education admissions. But here he distinguishes his originalism from original intent, for one can hardly deny that the framers of the 14th Amendment intended it to provide specific protections to African-Americans. But Scalia not only rejected this view, but also condemned his colleagues for “misreading” the law. In Shuette v. Coalition to Defend Affirmative Action he even went so far as to lecture Justice Sonia Sotomayor as if she were an errant school girl, proclaiming that her reading of the 14th Amendment was not only wrong, but had no place in the Supreme Court. In typical fashion he described Grutter v. Bollinger, Gratz v. Bollinger and Fisher v. University of Texas, two other affirmative action cases as this court’s “sorry line of race based admissions decisions.”
Discrimination Against LGBTQ People, More Distaste
Scalia didn’t exclude the LGBTQ community from his scathing attacks. In Romer v. Evans, which for the first time disallowed a statute that discriminated against gays, he announced that the Court’s decision was “nothing short of preposterous” and that it “has no foundation in American Constitutional law and barely pretends to.” As expected, he condemned the Court’s decision upholding the right to same-sex marriage as “lacking even a thin veneer of law.” And his most recent comment in the Fisher case, argued this term, was that maybe Blacks would be better off going to “a less advanced school, a slower-track school where they do well.”
A Right-Wing Judicial Warrior
These decisions and comments might be more understandable if Scalia was simply applying the law. Even if he were evenhandedly applying his own judicial philosophy, one could understand that the Constitution does not typically foretell a particular outcome. Sometimes the chips fall where they may. But on closer examination, Scalia was a much more consistent originalist when case reflected liberal issues.
Not only did he criticize liberal judges for making decisions based on their values, he was willing to abandon his very own originalism and do the same when it suited him. It was this contradiction that underscored the decidedly ideological nature of his judicial philosophy and that places it within the framework of a broader and deeper political struggle in the country today. Justice Antonin Scalia will rightfully be remembered as a powerful intellect and justice who left an indelible imprint on Constitutional law. But he also should be remembered as part of the conservative revolution of the 1980s that we are still living with today.
Victor Goode is law professor at the City University of New York School of Law. He is a former board member of Race Forward, the racial justice organization that publishes Colorlines.