Justice Antonin Scalia and Occasions for Stumbling

Justice Antonin Scalia 1936-2016

“If any of you put a stumbling block before one of these little ones who believe in me, it would be better for you if a great millstone were fastened around your neck and you were drowned in the depth of the sea.
Woe to the world because of stumbling blocks! Occasions for stumbling are bound to come, but woe to the one by whom the stumbling block comes!”
Matthew 18:6-7

When I was preparing to apply for college the high school guidance counselor met with me and my parents to talk about the process. 

Given our very modest family financial resources, I had focused first on state schools and I had considered beginning at a community college and then transferring to a four year school. But then my English teacher, Barbara Ford, took an interest in my situation and gave me some life changing advice. “Trench,” she said in her typically authoritative manner, “you need to apply to a school that can give you a scholarship. Have you ever heard of Wesleyan University?”

My guidance counselor knew that Mrs. Ford had been meddling in his business and he wanted to make sure I understood that the Wesleyan idea was not really a good one. Even if I could get a scholarship, most of the other students would have very different lifestyles than mine. They would be skiing in Switzerland and driving fancy cars. And on top of that, a large percentage would have gone to prep schools and they would be way ahead of me academically. 

The bottom line was that he was sure I would be more comfortable with people in my own socio-economic demographic. 

The cautions of my high school guidance counselor came back to me when I read Justice Antonin Scalia’s remarks this past December in relation to affirmative action at the University of Texas in Austin. 

“There are those,” Scalia observed, “who contend that it does not benefit African-Americans to get them into the University of Texas [Austin] 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.” He contended that blacks might to better at “lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them.”

Technically, Justice Scalia was not necessarily telling us what he thought, he was only noting what “others” had said and citing studies claiming to prove that point. Underneath the veneer of a soft spoken attempt to sound reasonable, what he was saying something less than a repackaging of the “separate but equal” argument of segregation. Justice Scalia was advocating separate and not equal, and contending that this was better than equality.

And this was not his first venture into a tortured defense of historic bias.

In 2003, when the Supreme Court struck down a law that made consensual sex between consenting adults of the same sex illegal, Scalia wrote a typically scathing dissent.

“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.” 

He went on to say 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 life style that they believe to be immoral and destructive.”

In an earlier decision, his disdain for the LGBTQ community was even more pointed. “Of course,” he began with measured reasonableness, “it is our moral heritage that one should not hate any human being or class of human beings.” And then he made his argument with remarkable venom, “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. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct.”

Stephen Carter, a professor at Yale University Law School, reported that shortly after news of Justice Scalia’s death broke, his Twitter feed “began to fill with hate.” And he made it clear that he meant exactly what he said, “Not disagreement or disrespect -- actual hate. He was an ignorant waste of flesh, wrote one young fool. His death was the best news in decades, cheered another. Then there was the woman who just had to tell the world that she felt safer now than she had at the death of Osama bin Laden. And several people expressed the hope -- the hope! -- that Clarence Thomas would die next.”

Carter argues that even those who disagreed with Justice Scalia should be able to respect him as a person and appreciate his many good qualities.

Scalia was a brilliant legal scholar and a gifted writer. Those who knew him say that he was witty and kind. He was a devout Roman Catholic. He had a deep friendship with Justice Ruth Bader Ginsburg, although they were diametrically opposed in their approach to the law. I am impressed by his ability to cultivate friendships with those with whom he disagreed.

But his wonderful qualities do not change the fact that he often used his wit and skill in ways that were deeply hurtful to minority groups. If he had not been so gifted, he would have done less damage to the aspirations of those on the margins of our society.

Justice Scalia was a proponent of Constitutional “originalism.” He believed that his task was to determine the original intent of those who wrote the law and then follow it. A jurist should be like a baseball umpire calling balls and strikes. The umpire does not change the strike zone or add his own interpretation of what is or isn’t a strike, he just calls them as he sees them. 

The problem is that such an approach always favors the status quo. And the status quo always favors those who have power against those who are powerless.

When we consider the original intent of the framers of the constitution, it is useful to remember that they were white male landowners. Many were slave owners. They were relatively rich. And they saw the world from that perspective.

In that context, I find myself more comfortable with Jeffrey Toobin’s critical remembrance of Justice Scalia than with the many gushing eulogies that seem to remember only his positive characteristics. He was brilliant. But he used his brilliance to maintain oppression, rather than to alleviate it.

I want to think of him more positively, but I can’t.

He gave others a “cause for stumbling.” He gave intellectual cover for racism and bigotry, even if he did not feel those things in his own heart.