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.

Voting Rights and the Supreme Court

Why do you say, O Jacob, and speak, O Israel,
“My way is hidden from the Lord,
and my right is disregarded by my God”?
Have you not known? Have you not heard?
The Lord is the everlasting God,
the Creator of the ends of the earth.
He does not faint or grow weary;
his understanding is unsearchable.
He gives power to the faint,
and strengthens the powerless.
Even youths will faint and be weary,
and the young will fall exhausted;
but those who wait for the Lord
shall renew their strength,
they shall mount up with wings like eagles,
they shall run and not be weary,
they shall walk and not faint.
Isaiah 40:27-31

Yesterday the Supreme Court eviscerated the most important part of the Civil Rights Act of 1965. They eliminated the provision requiring states and counties with a history of discrimination to get pre-approval from the Justice Department before implementing changes in voting rights laws. Before the day was done, lawmakers in Georgia, Mississippi, Alabama, and Texas rushed to implement laws that will make it harder for African Americans to vote.

In 2006 when Congress extended the Voting Rights Act, the Senate passed it unanimously and the House had only 33 dissenting votes. President Bush signed the measure and gave a speech reminding all Americans that this was one of the most important bulwarks of our democracy.

Without the requirement for pre-approval, states can pass and implement restrictive laws which can only be challenged after the fact. And those challenges would typically work their way through the court system after one or more election cycles had already gone by. If the court did not like the way that states and counties were identified, then it would be better to require pre-approval for every change to voting requirements in every state.

I find myself coming back to Dr. King’s famous declaration of hope, “the arc of the moral universe is long, but it bends toward justice.” King adapted the phrase from the great 19th century abolitionist and preacher, Theodore Parker. King made that affirmation of faith in a speech given on March 25, 1965, in Montgomery, Alabama, at the conclusion of a march from Selma. The whole campaign was “centered around the right to vote.”

The Civil Rights movement was not aimed at achieving “equality” as an abstract concept; it was aimed at achieving equality as a practical reality. Achieving equality as a practical reality required laws. Voting was (and is) critical to changing laws.

In an impassioned dissent from the majority, Justice Ruth Bader Ginsburg declared, "The Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation's history." She added, "Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made."

Later this summer, when we celebrate the fiftieth anniversary of the March on Washington and Dr. King’s famous “I Have a Dream” speech, we will hear a great deal about equality as an abstract intellectual concept. But Dr. King was not killed, or jailed, or reviled, because of an abstract concept. He was killed because he led a movement that was changing America.

What Would Earl Warren Do?

The spirit of the Lord shall rest on him, the spirit of wisdom and understanding, the spirit of counsel and might, the spirit of knowledge and the fear of the Lord. ³His delight shall be in the fear of the Lord. He shall not judge by what his eyes see, or decide by what his ears hear; ⁴but with righteousness he shall judge the poor, and decide with equity for the meek of the earth.

Isaiah 11:2-4a

It has been almost forty years since Earl Warren died. In my earliest memory, I thought his name was "Chief Justice Earl Warren." I don’t remember whether or not I was surprised to discover that he was not a Native American. Later, I remember the bumper stickers that said, “Impeach Earl Warren.” They were rare on Cape Cod, and more of a curiosity than anything else.

Earl Warren was a Republican, appointed Chief Justice by President Eisenhower after serving three terms as Governor of California. In the second election he was unopposed in the general election, having won the nomination of the Republican, Democratic and Progressive parties. Before serving as Governor, he was the Attorney General, and before that he was a district attorney, known for his skill and toughness.

Sadly, as Attorney General, Warren was the driving force behind the compulsory internment of Japanese citizens during the Second World War. He was convinced that Americans of Japanese ancestry could not be trusted to be loyal to the United States and that the internment was an act of self defense by the government. In his memoirs, Warren wrote of his deep regret regarding "the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens...Whenever I thought of the innocent little children who were torn from home, school friends, and congenial surroundings, I was conscience-stricken.”

As a young person, I believed deeply in the goodness of the Supreme Court. They were the keepers of the flame of liberty. They were the ones who would keep us on course. And I believed that when a person was appointed to the court, he (or later, she) would feel the gravity of that sacred office and rise above partisanship. In those days I had a very idealized view of history, and I had no trouble believing that decisions like “Dred Scott,” or “Plessy v. Ferguson” were aberrations, and that “Brown v. Board of Education” was and would always be the norm.

I have been reflecting on the debt we owe to “The Warren Court.” Without their ruling on segregation, it is hard to imagine the Civil Right Act. And it’s hard to imagine the subsequent Civil Rights gains for women and more recently for gays and lesbians. Our expanding view of equality is a legacy of the Warren Court. Earl Warren and his colleagues were in the right place at the right time.

One suspects that the outcome would have been very different if the Warren Court had ruled on “Citizens United,” and on the related case in Montana.

And it is interesting to wonder how the Roberts Court would have decided on “Brown.” In one sense that’s not really possible even to imagine, since the Roberts Court would be very different without that decision. Justice Thomas certainly would not be on the Supreme Court without Earl Warren’s leadership on “Brown.” And we probably would not have any women, either.

If the Warren Court were considering the Affordable Care Act, I think the Chief Justice would have to recuse himself. One of Earl Warren’s unsuccessful initiatives as Governor of California was universal health care.