Antonin Scalia, 79, passed away on Saturday, and a bit of the old Reagan-ish U.S. went with him. For good and for ill, the next Supreme Court nominee – if they can squeak through the Senate scolding process – is going to be a great deal more liberal. If the Senate lets it happen, that is.
Regardless of all that business, the feistiness of the 2016 election just got even more so. To say nothing of the complicated task the now eight-member Court must deal with regarding its unfinished term and its suddenly weirdly evenly balanced partisanship.
Sprinkled throughout social media when word appeared that Scalia died was praise and tribute from some quarters, and unrestrained glee in others. As The Onion put many people’s views, “Justice Scalia Dead Following 30-Year Battle With Social Progress.”
Like any Supreme Court Justice, Scalia was inconsistent in his application of government power. He would say he was following “originalism.” He was the pain-in-the-ass guy who wanted to know what the dead Founders really wanted, and he would examine each and every word to suss this out. He was the opposite of those “living Constitution” gals and fellas. He did, however, have a weirdly touching friendship with extremely liberal Justice Ruth Bader Ginsburg, who is undoubtedly bummed out today. They once rode an elephant together and serenaded each other with Bob Dylan songs. Really.
Scalia being gone is a great excuse to look back at his legacy, which it is obligatory to call “towering” or something else substantial-sounding. He did such things as cast the deciding vote on District of Columbia vs. Heller (2008), one of the most significant gun cases in recent memory. He memorably savaged Obamacare in his dissent on the case upholding it on tax grounds. He was known to be personable and amusing, even among people who hated him. Generally, Scalia wanted to cut through the legalese in decisions and make his opinions comprehensible to actual humans.
However, his rulings on issues of gay rights confirmed him as ancient and out-of-touch in a Rick Santorum sort of way. Not to mention, his death penalty stance was severely to the right of the Pope’s, in spite of them both being Catholic.
Surprisingly for a man who had a tremendous reputation as a right-winger, Justice Scalia was not as anti-Fourth Amendment as you might guess. After all, Ronald Reagan appointed Scalia, and Reagan beefed up the War on Drugs – made it militarized. This had a nasty effect on privacy rights of Americans years before the PATRIOT Act or any other post-9/11 panic added to the mess.
Sometimes this reputation did apply. Scalia did side with the majority in Raich v. Gonzalez (2005), which upheld the Bush administration’s right to mess with medical marijuana growers, even if their goods weren’t passing state lines. However, as (my former colleague) Jacob Sullum notes at Reason, Scalia was really much more mixed on the issues you would expect a left-winger’s boogeyman to be menacing on.
Scalia seemed perfectly willing to grant that a drug dog “alert” (dubious, like much of crime-fighting’s “science”) is enough justification for a search of a vehicle in one case. Then four weeks later, he allied with the liberal chunk of the court and agreed that bringing a drug dog to a suspect’s home constituted a search.
On the side of good he was also opposed to using thermal imaging to find potential grow lights for illicit marijuana crops. He scorned a decision – and its potentially terrible precedent – that upheld the constitutionality of an anonymous phone call that led to a car stopped and drugs busted. He was opposed to a teen’s underwear being searched for Ibuprofen by her school. He joined the majority of the Court in agreement that searching a cellphone counts as a search under the Fourth Amendment, and so does placing a GPS device on a car.
Flag-burning was protected speech, according to Scalia. He also supported rights to enjoy indecency and violent video games. Perhaps he was only middle-aged and Catholic, not as antediluvian as commonly portrayed.
Except – there was that business with gay people and their desire for equal rights. Over the years Scalia’s often tart pen turned downright vicious when he wrote of this issue. Famously in the 2003 Lawrence v. Texas, Scalia dissented on the Court’s decision to overturn Texas’ anti-sodomy law on 14th Amendment-based privacy grounds.
In fact, no matter the particulars of the case, it seems like Scalia was never going to affirm gay rights at all. Notably, in a 2013 New York Magazine interview, he pooh-poohed the Ninth Amendment. The brief, often-forgotten wording is as follows: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As compellingly argued in a 2007 Alternet piece, followers of originalism and similarly constitutionally-minded people such as Scalia wish to leave gay rights, abortion and other hot topics to the political process. i.e., in his Lawrence dissent, Scalia referred to “judicially invented abortion rights.” If it’s not spelled out, it’s not there. Never mind the negative liberty expressed in the Ninth Amendment, which says, just cause it ain’t written here, doesn’t mean you can’t do it.
The Alternet piece notes that the Ninth Amendment plus the 14th’s equal protection clause, which is usually what anti-gay or other allegations of prejudice law are challenged under – together give some legal muscle to the “leave me alone” social arguments. The kind that Scalia, sadly, did not find room for in his brand of constitutional purity. Certainly not when ruling on things that made his old manism uncomfortable. His dissent in last year’s Obergefell v. Hodges, which legalized gay marriage at the federal level was melodramatic in the extreme. To his credit, he did predict that such a ruling was coming more than a decade previous in that Lawrence dissent, in which, not to his credit, he made a Rick Santorum-worthy argument that gay marriage would lead to incest and bestiality. Alas.
It’s odd that Scalia would have such flashes of decency in his rulings and such blinders on in others. Strange that he would be relatively enlightened on the Fourth Amendment, yet stuck in a particular brand of the past when it came to privacy in the womb or the bedroom. But that’s the nature of being one member of an absurdly powerful, secretive third of the federal government. Your caprices and your biases become part of history. You are one-ninth of Moses on the mountaintop, but you act as if you’re a scientist. For all of his desire for originalism, Scalia’s sometimes surprising rulings prove that such an idea is ever-elusive.