On February 13th, U.S. Supreme Court Justice Antonin Scalia died of natural causes. A larger than life figure on the bench, his decisions have had lasting effects on American society since his appointment in 1986. While the tradition is to honour the accomplishments of the dead in the wake of their passing, as some have done, this does not seem appropriate in this instance. Justice Scalia, throughout his near 30-year term, worked to undermine and erode civil liberties at every turn, and the majority of news agencies and rights organizations have taken to remembering the Justice for that. Regardless of one’s stature or mortality, reason and honesty must prevail. The following is a review of Justice Scalia’s work behind the bench and as an influential speaker outside the court, and how he worked to undermine women’s rights, LGBT rights, and minority rights.
When Justice Scalia was appointed, the prevailing theory of constitutional interpretation was of a living constitution. Similar to the Canadian principle of the living tree, this was a theory rooted in evolution. The constitution and how it governs society changes over time to meet with the changing and evolving needs of society. Justice Scalia brought a different approach, a theory of originalism. Originalism is the theory that the constitution should remain as it was when it was first written, and to interpret it based on the intentions of its drafters. This theory of originalism, based largely on Justice Scalia’s presence, is now the most prevalent theory of constitutional interpretation in the U.S. Supreme Court. This means that the constitution and its provisions do not move with time as we progress, but rather are stagnant and stuck in the late 18th century; abortion, women’s rights, minority rights, and non-heteronormative values are deemed not to exist because the original drafters had not conceived of them.
Justice Scalia’s approach to women’s rights was deplorable. He believed that women were not protected under the constitution. When discussing gender discrimination, Justice Scalia stated that the original drafters of the constitution had not conceived of gender discrimination and thus it was not covered by the constitution; while the constitution did not advocate for discrimination it did not ban it either. However, the Equal Protection Clause, something both political parties agreed to, states that no person can be denied equal protection of the laws. Justice Scalia believed that the drafters of the Fourteenth Amendment never intended to prohibit discrimination against women. For Justice Scalia to believe that women or gender discrimination were not protected by the constitution he would have to believe that women were not people. While he later backtracked from these controversial comments, he did so in a typically unapologetic manner, stating clearly the drafters intended to prohibit gender discrimination, but that “there are some intelligent reasons to treat women differently” and that he was uncomfortable with women who swore. An individual holding such negative views of women should not have had the opportunity to have such a large influence over American society for three decades.
In an article for the American Civil Liberties Union, Lenora M. Lapidus of the Women’s Rights Project said it best when describing fighting Justice Scalia’s opposition to progress. “It is troubling that a justice on the Supreme Court continues to espouse the view that women are not protected by the Constitution and worrisome that he brings this perspective to his decision-making. Luckily, the majority on the court — and of the public — do not share this view. We have come too far to turn back the clocks”.
Justice Scalia had a disdain for LGBT rights. In Romer v Evans, he stated that the animosity towards LGBT individuals is understandable, and was similar to the disdain for murderers or perpetrators of animal cruelty. He also felt that laws limiting LGBT rights were similar to those affecting smokers and drug addicts. To even consider making such statements shows that the Justice was a man of dangerous ideology, rooted in centuries old repressive notions that have no place in the modern world.
Justice Scalia rejected minority rights. In Fisher v Texas, a case that has been argued in front of the Supreme Court but where a decision has yet to be rendered, Justice Scalia displayed his bigotry. This case has the potential to eradicate affirmative action programs in public universities. In his opinion in the case he stated, “there are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well”. He also stated, “one of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” Without any evidence, he described African Americans as being of lesser intelligence and not able to handle a particular university. These quotes elicited gasps from the courtroom, and rightfully so.
His lack of tact served only to undermine serious discourse and progress on important issues. In his dissent in Stenberg v Carhart, a case that lifted an abortion ban in Nebraska, he compared permitting abortions to the decisions in Korematsu and Dred Scott, cases that permitted the internment of Japanese Americans and stated that African Americans, whether free or enslaved, were not people. For one of the most powerful and influential people in American society to suggest a woman’s right to an abortion is akin to an entire race not being considered people, and the brutal treatment of Japanese Americans during the Second World War is incredibly problematic.
Justice Scalia was regressive in his rulings in the courtroom and his views outside of it. With the current landscape of eroding voting rights and fights against a woman’s right to her own reproductive health, having one fewer powerful regressive voice may help buck the trend and bring about the necessary progressive evolution in these and other topics.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.