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For the last couple of days, I’ve been at odds over my feelings about the death of U.S. Supreme Court Justice Antonin Scalia.
I have to admit that my initial reaction of loudly belting the tune “Ding Dong, the Witch is Dead!” may have been a bit cruel.
I know in my heart that finding happiness in the suffering of others is never a good thing, so I’m coming to terms with my own mixed feelings. I realize that it isn’t Scalia I despised—it is the angry intolerance and lack of understanding for fellow human beings.
As a person, I admire Scalia tremendously. He was the only son of Italian immigrants who grew up in Trenton, New Jersey back in the days when pulling yourself up by your bootstraps was a thing, and high-interest student loans, substandard minimum wage, and criminalization of poverty weren’t. He did work hard, by all accounts, and made his way to Harvard Law School on his own accord.
I deeply admire the facts that he spent his entire life in public service, and that he never swayed in his deeply held beliefs. One of his closest friends was fellow justice Ruth Bader Ginsburg, whose opinions and rulings are nearly always in line with a progressive, modern interpretation of the Constitution.
I also admire the fact that Scalia singlehandedly changed the way the Supreme Court formed and penned its decisions. From the day he took the bench in 1986, he began asking questions when none had been asked before. He was also known for his eloquent, sometimes humorous, and often biting written dissentions: it was Scalia whose skill with the written word forever changed the tone of the annals of the country’s highest court.
But what I cannot forget is the pain and division Scalia caused by normalizing stereotypes and reinforcing institutional inequality for gay people, people of color, immigrants, and the poor. In a country where tolerance and cooperation are supposed to be founding values, he held some damaging opinions.
- Scalia on Race:
Late last year, Scalia was on the bench when the Supreme Court heard arguments about admissions standards at the University of Texas at Austin. The four liberal justices all favored consideration for race in admissions in an effort to create a more diverse—and representative—campus. Scalia was not only against such affirmative action (which admittedly has strong arguments on both sides), but his justification showed a disturbing level of bias and, dare I say, ignorance.
“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 said. “ …most of the black scientists in this country don’t come from schools like the University of Texas,” he added.
- Scalia on Gay Rights:
In 1996, the Supreme Court heard the Romer v Evans case, and ruled that federal equal protection laws protected homosexual and bisexual people. Scalia disagreed with the majority ruling (along with conservative justices Clarence Thomas and William Rehnquist), and based his judgment on his opinion that homosexuality is morally wrong. He referenced a Supreme Court ruling from a decade earlier (repealed in 2003) which ruled state anti-sodomy laws Constitutional, saying: “If it is rational to criminalize the conduct [of homosexuality or bisexuality], surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct.”
In other words, he believed that being gay, or engaging in homosexual or bisexual sex was a bad moral choice. Thankfully, science and the voices of millions of people worldwide whose sexual orientation isn’t “traditional” has since convinced many of us that, not only is sexual orientation not a choice, it’s also not a negative measure of a person.
Scalia didn’t stop there. He also wrote, “Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct.”
In 2012, Scalia publicly defended his views in a speech at the American Enterprise Institute. “Homosexual sodomy?” he said. “Come on. For 200 years, it was criminal in every state.”
In 2013, when a Supreme Court majority threw out a law that denied same-sex couples federal benefits, Scalia dissented and wrote: “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
Then again in 2015, in his dissention on overturning states’ ban on equal marriage, he wrote: “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think that Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
- Scalia on Universal Health Care:
In June 2015, the Supreme Court decided to uphold a key portion of the Affordable Care Act that provided tax credits for people living in states that refused to comply and establish their own marketplaces. The ruling allowed millions of Americans, most of us hard-working contributors to society, to maintain about $1.7 billion in subsidies that allowed them to pay for healthcare.
Scalia strongly opposed. He called the ruling “pure applesauce” and “interpretive jiggery-pokery.”
- Scalia on Immigration
As the son of an immigrant, Scalia had little time or room in his heart for “unwanted” immigrants. In 2012, the court heard the case for and against one of the toughest anti-immigration laws on the books, Arizona SB1070. It ruled that most portions of the law were unconstitutional, specifically, its requirements that any person over the age of 14 and not born in the United States was required to carry identification proving their legal ability to be in the U.S.; the ability of police to arrest without a warrant; and the mandate that no one could work or hire someone who did not have a federal work permit.
Scalia disagreed with the majority decision. He referenced the first 100 years of the Constitution (which included part of the 1700s and the early 1800s), a time when his opinions on the subject were more valid and accepted. He said that, back then, states were able to determine what they wanted to do with “unwanted immigrants,” and comparing today’s immigrants to the “convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks” who were regulated by states.
“State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration,” Scalia wrote.
- Scalia on Gun Control
We all remember the 2012 movie theater shooting in Aurora, Colorado. It was one of what seems like hundreds of incidents that, in recent years, has left us with tears and fears, but also shown us just how powerless we are to mobilize against a corporately controlled pro-gun lobby.
In spite of tens of thousands of gun-related deaths—about half of which are crimes, and half suicides—in our country each year, Scalia took what many (most?) of us deem smart and reasonable gun control laws, such as universal background checks, lightly.
Just after the theater shooting, Fox News asked Scalia if he believed the Second Amendment allowed for restrictions. “Obviously, the amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear. So, it doesn’t apply to cannons,” Scalia said dryly—his failure to address the issue seriously a slap in the face to those who have lost loved ones to gun violence.
“But I suppose there are handheld rocket launchers that can bring down airplanes,” he added, noting that even those could be interpreted as protected under the Constitution. “That will have to be — it will have to be decided,” he said.
- Scalia on Abortion
In 2012, Scalia appeared on CNN’s Piers Morgan Live. During the interview, he said that big issues like the death penalty and abortion were among the easiest to decide.
“The death penalty?” he said. “Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion.”
“The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure that it is not,” he said.
What Scalia was referring to was the 9th Amendment of the Constitution, which maintains that there are certain rights that are not covered by the Bill of Rights that are still protected. In the Roe v Wade Supreme Court decision, Justice Blackmun noted that abortion was “resorted to without scruple” in Greek times and during the Roman Era.
In other words, abortion has been around a long time, and is something that—within reasonable limits (which are already in place)—the Supreme Court ruled should remain a personal choice.
Since Scalia’s death, there are several cases now to be decided that are, no doubt, going to be nail-biters. Without his swing vote, and with the status of a new presidential appointment in limbo, issues about unions, affirmative action, funding abortion providers, voting rights, immigration, and the Affordable Care Act contraceptive mandate are at stake.
Scalia adamantly stood for maintaining the Constitution as it was written, with the same interpretation our forefathers intended in the 18th century. Although admirable for resting for his laurels, the world has evolved. We know more now. We recognize the inherent value of all human beings, and not just the white Christian male majority.
When it comes to Scalia, I do believe it is possible to admire the person but recognize that we’ve grown from our ignorance about race, about human rights, and about our responsibilities to each other. I am saddened that so many lost a good friend, a good father, a good person.
But I am ready for our country to move forward.
Author: Amanda Christmann
Editor: Renée Picard
Image: Stephen Masker/Flickr