UNPOPULAR OPINION: Justice Antonin Scalia Was A Jerk and It's Fine to Speak Ill of the Dead

Twitter rejoiced this weekend upon the announcement of Justice Antonin Scalia's death, and they were right to do so.
Publish date:
February 16, 2016
dead people, supreme court

This weekend, Justice Antonin Scalia, elder statesman of the Supreme Court of the United States, passed away at a ranch in Texas. If you're expecting a heartfelt eulogy, look elsewhere: Scalia was a bigoted, cruel, vicious man and he had a profoundly negative effect on American jurisprudence and civil liberties. I said it while he was alive, and I have no problem saying it while he's dead, too, because the dead aren't made sacred by virtue of not being here to defend themselves. If you don't want people to talk about what a jerk you were after you die, try not being a jerk in life.


Twitter in particular rejoiced in his somewhat unexpected death, though a few people made token efforts at trying to lecture others on how we shouldn't speak ill of the dead. Why not? In Scalia's case, "speaking ill" is part of confronting his judicial legacy, which was nothing short of horrific for anyone in America who wasn't white, cisgender, middle class, conservative Christian, heterosexual, and male. To ignore decades of decisions that served only to entrench inequality and injustice in the United States is unreasonable — and while Scalia indisputably had considerable judicial experience and training, that doesn't change the fact that his decisions were clearly heavily influenced by his personal politics and morals, which he should have left at the door.

"Bye, Scalia" is a completely legitimate response to the death of a man who ruined lives from his position on the Supreme Court bench, and who really couldn't have picked a worse time to die, because vultures are already hovering to politicize his death — something he was actually strongly against, feeling that Supreme Court appointments were already too politicized. Within hours, Republicans, including presidential candidates, were smugly announcing that they would block any Supreme Court appointment, with asinine comments like: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president."

This is rather a condemnation of the Obama Administration, which still has nearly a year left in office and was in fact elected by the American people to make decisions exactly like this one. Allowing a seat on the Supreme Court to sit vacant for almost a year — and longer, given that the next president would have to vet and nominate candidates who would in turn need to go through confirmation hearings — would be nearly criminally irresponsible, especially considering the fact that a number of critical cases are headed to the court this year (eight justices can sit, as all they need is a quorum of six to hear a case, but 4-4 splits are likely to come up repeatedly this year, forcing the court to opt to rehear cases later or allow lower court rulings to stand). President Obama has a mandate to appoint a justice, which is precisely what he will be doing in the coming weeks.

Selecting Scalia's worst comments in opinions and from the bench is a challenge, but it's worth noting that had a female justice been as acerbic as he was, she would have been roundly condemned as a shrill harridan, rather than celebrated as having a snappy, sharp wit. Scalia's biting judgements weren't funny, jiggery-pokery and applesauce aside: While his legal knowledge was considerable and he applied it rigorously through his own twisted lens of what the Constitution meant, the sheer hatred and bigotry that he unleashed was formidable. The amused articles sharing the "best" bits of his opinions often ignored the fact that the opinions themselves served to reinforce discrimination — as for example in his blustery commentary on the Affordable Care Act.

In Planned Parenthood v Casey, he compared abortion to incest and suicide (and lumped "homosexual sodomy" in as well, along with polygamy). He commented in Stenberg v Carhart, a case that revolved around the legal fiction of "partial birth abortion," that the procedure amounted to a "visibly brutal means of eliminating our half-born." He even took the time to mock pro-choice advocates in multiple decisions, including that in Webster v Reproductive Health Services.

He also endorsed the right to be "hostile toward homosexual conduct" in Colorado, in one of many decisions rife with rampant homophobia. In 2003, he wrote that: "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

Just last year, he expressed disdain for affirmative action, one of this country's few attempts at addressing the vast social inequalities that make it challenging for many people to access an equal education. Similarly, he once referred to voting rights as "racial entitlements" and bemoaned how difficult it was to set back the clock once legislation like the Voting Rights Act was passed. On immigration, he said that Arizona's "citizens feel themselves under siege by large numbers of illegal immigrants." Incidentally, in that same decision, he compared freed slaves to "unwanted immigrants." He also supported indefinite detention of suspected undocumented immigrants.

An ardent supporter of the death penalty, Scalia once commented that: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Innocence was evidently not enough to issue a stay of execution. He felt that the death penalty was both Constitutional and entirely moral. "You kill, you die." He was also a big fan of torture, speaking of cruel and unusual punishment.

Scalia voted with the majority in critical cases like Bush v Gore, Citizens United v Federal Election Commission, Walmart v Dukes, and Burwell v Hobby Lobby. These cases changed civil rights and the political environment in the United States in a way that is effectively irreparable, despite the fact that many notable legal critics disagreed with the decision of the court. These things must be remembered as a part of Scalia's legacy — we cannot sugarcoat who the man was and what he did to America now that he's passed away.

Ruth Bader Ginsberg may have enjoyed a friendly relationship with him, respecting him as a person even though she disagreed vigorously with his political views — for that's what they were, as his judgments clearly illustrate — but the games he played with real lives weren't at all like fun academic exercises in Supreme Court chambers. I for one am glad to see Scalia go, and I'm not at all ashamed of it.

Image credit: Ted Eytan/CC