Supreme Court Justice Antonin Scalia died at the age of 79 on Saturday. It was an apparently peaceful death, by all accounts, in his bedroom at a West Texas luxury resort after a weekend of quail hunting. He has children and grandchildren and Ruth Bader Ginsburg to mourn him; let’s not do that here. Because Scalia, while brilliant, was also a titanic, sweeping, one-man disaster for LGBT rights, racial justice, abortion access and general human decency.
As we consider the chaos that’s about to envelop the country as a result of this sudden vacancy on the court, let’s also take a brief stroll through some of the many hideous and inexcusable things Scalia said or wrote over the years. Where do we begin? Once we do, can we ever stop?
Scalia’s view on Roe v. Wade was that it should be overturned, because our founding fathers didn’t go around having abortions.
That is, publicly at least, the basis for most of Scalia’s particularly bad opinions: a rigid insistence that the Constitution should mean exactly what it meant 200 years ago.
That led him to argue, clearly and consistently and for many decades, that abortion could and should be legally restricted as much as humanly possible. From his dissenting opinion in Planned Parenthood v. Casey, where he argued the state could make abortion illegal for the same reasons it would outlaw bigamy:
The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure that it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected-because of two simple facts: (1) the Constitution says nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.
One of the things that upsets me about modern society is the coarseness of manners. You can’t go to a movie—or watch a television show for that matter—without hearing the constant use of the F-word—including, you know, *ladies* using it. People that I know don’t talk like that! But if you portray it a lot, the society’s going to become that way. It’s very sad.
Homosexuality and LGBT Rights
Again, as with abortion, an area where we could fill a book with Scalia’s questionable opinions. (A 2013 Mother Jones piece pulls out some of the particularly stunning lowlights.) But certainly one of the worst was Scalia’s dissent on Lawrence v. Texas, which struck down anti-sodomy laws. Scalia argued, more or less, that the state could make laws against homosexuality for the same reasons it would have an interest in outlawing murder or bestiality:
“The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ . . . the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, ‘furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,’ …The Court embraces instead Justice [John Paul] Stevens’ declaration in his Bowersdissent, that ‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,’ . . . This effectively decrees the end of all morals legislation.”
We also have his extremely pouty dissent this June against the ruling that legalized same-sex marriage. Scalia first wrote that he didn’t particularly care about gay marriage one way or another—no?—before saying giving it to gay folks could “perhaps have adverse social effects,” maybe. He also complained that the court was overstepping its bounds by applying marriage rights equally:
The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.
“Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”
And finally, from the same interview where he wept about swearing ladies coarsening the manners of modern society:
I have friends that I know, or very much suspect, are homosexual.
He was enthusiastically for it, as he said at a Pew forum:
“You want to have a fair death penalty? You kill; you die. That’s fair.”
Nor could Scalia, a devout Catholic, quite see the death penalty as immoral:
Scalia, who insisted he was “judicially and judiciously neutral” toward capital punishment, said that he did not find the death penalty immoral. “I am happy to have reached that conclusion,” he continued, “because I like my job and would rather not resign.”
He was for that too. Scalia only held that torture was unconstitutional if imposed as a punishment, since that would be cruel and unusual. But for the purposes of getting information out of someone, why not? Anyone who argued otherwise was merely being “self righteous:”
“We have never held that that’s contrary to the Constitution. And I don’t know what provision of the Constitution that would, that would contravene.
“Listen, I think it is very facile for people to say, ‘Oh, torture is terrible.’ You posit the situation where a person that you know for sure knows the location of a nuclear bomb that has been planted in Los Angeles and will kill millions of people. You think it’s an easy question? You think it’s clear that you cannot use extreme measures to get that information out of that person? I don’t think that’s so clear at all.
“And once again, it’s this sort of self-righteousness of European liberals who answer that question so readily and so easily. It’s not that easy a question.”
That time he suggested black students would do better at schools that weren’t “too fast” for them:
“There are – there are those who contend that it does not benefit African Americans to 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 less – a slower-track school where they do well.
“One of – one of the briefs pointed out that – that most of the – 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 – that they’re being pushed ahead in – in classes that are too too fast for them.”
In 2008, to 60 Minutes: “I’m a law-and-order guy. I mean, I confess I’m a social conservative, but it does not affect my views on cases.”
Finally, let’s take a look at perhaps the only useful thing Piers Morgan has ever done: an interview with Scalia in 2013, wherein his extreme indifference about whether the death penalty is killing innocent people is fully on display. He’s also not sure whether the framers of the Constitution had different ideas about women’s rights than we do today. Just genuinely thought you could argue a different side on that one.
Everyone deserves to rest in peace, we suppose, but Scalia is certainly not entitled to any special measure of it.
Scalia in 2011. Photo via AP Images