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Antonin Scalia, the Last Honest Judge


Antonin Scalia, as Antonin Scalia will be the first person to tell you, does not let his social conservatism affect his jurisprudence. It’s just that the equal protection 14th Amendment concerns only racial discrimination, with particular attention to “discrimination” against white people, which is why the Freedman’s Bureau was considered unconstitutional by the framers of the 14th Amendment. It is just objectively true that the 14th Amendment doesn’t forbid invidious discrimination on the basis of gender or sexual orientation. This objective truth remains true although the 14th Amendment says nothing about race. And the subsequent amendment shows that the framers could have limited the equal protection clause to racial discrimination if they choose to. And Scalia is supposed to be a “textualist.” Where was I?

Oh, yes, Scalia’s reading a “race, especially racial classifications that aren’t related to maintaining a caste system, only” qualification into the 14th Amendment does not in any way reflect his reactionary political views. Which is why he would never fill the United States Reports with specious and offensive analogies about gays and lesbians.

And, actually, Millhiser is being too charitable to Scalia. Scalia didn’t actually say in his Lawrence dissent that he had “nothing against homosexuals.” Here’s the full quote:

Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.

He’s not saying that he has nothing against homosexuals; he’s generously allowing that he has nothing against homosexuals participating in the political process.* And note for the second time in his dissent he alludes to the “homosexual…agenda,” which as everyone but Ann Althouse understands in itself ends any question about whether Scalia is a homophobe, since nobody who supports gay and lesbian rights uses the phrase “homosexual agenda.” Have you ever seen Scalia refer to the “evangelical Christian agenda” in his Establishment Clause opinions? And of course this affects his jurisprudence.

*Great point by Joe in comments: Scalia does, in fact, have something against homosexuals participating in the political process, given his support for constitutional amendments prohibiting homosexuals from participating in the political process and all.

…Adam has more.

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  • Albionia

    He’s an ideologically blind douche bag and fascist. His idiotic invocation of “scientific evidence” was a poor attempt to conceal his bigotry. A disgrace.

    • Glenn

      My dear Albionia, the Supreme Court has always had its share of Douchebags, and it always will.

      • Snarki, child of Loki

        OMFG! There’s a quota? Affirmative Action for Douchebags on the USSC?

        Clearly, this is much, much worse than boosting minority admissions to the UofM law school. To stay true to his principles, Scalia must resign from the bench immediately.

        • DrDick

          Glenn Reynolds, Ann Althouse, and William A. Jacobson clearly demonstrate that this is the case in law schools.

  • Kurzleg

    I had thought that one could consider certain conduct reprehensible…

    It always boils down to the sexytime. Always.

    • mds

      I had thought that one could consider certain conduct reprehensible…

      I had thought so, too, Tony. And I still do. It’s the enacting of such purely personal considerations into law with no rational justification whatsoever that’s the problem.

      • Manta

        Actually, Scalia is right on recreational drugs, polygamy, and prostitution.

        • catclub

          Which is to say he has ruled in the majority on none of those?

          • Manta

            No, that he is right in saying that there is no good reason to prohibit them.

            • Njorl

              But there are good reasons to prohibit polygamy, or to at least to deny recognition of polygamous marriage. Forget morality. Polygamous marriage makes too much work for the state.

              • SeanH

                Rubbish. If the state can handle the federal tax code, it can handle multiple marriage.

  • Uncle Kvetch

    specious and offensive analogies about gays and lesbians

    So, what grotesquely offensive person or thing can I look forward to being compared to this week? People who hold the subway door open? People who don’t send flowers on Mother’s Day? Yankees fans?

    • Scott Lemieux

      Yankees fans?

      In fairness, I don’t think even Scalia would go that far.

      • Sonia Sotomayor, Yankees Fan

        Do NOT make me go all injunction on your culos.

        • Scott Lemieux

          Point conceded!

  • Joe

    If he was concerned about letting homosexuals to freely be able to change things by normal democratic means, he should have joined the majority in Romer v. Evans where they were singled out and blocked from “normal” means and required to overturn a state constitutional amendment.

    Scalia somewhere btw explains that addressing directly victims of slavery was different than a more open-ended affirmative action plan but it’s understandable given his and Thomas’ open-ended rhetoric on the subject, such a thing can be lost. See how today even in an “easy” case he had to refer to social understandings and such in ways called out by Alito in dissent. Scalia’s opinion was fine on the merits though Kagan’s was probably better but he tends to paper over complexities in Grandpa Scalia AM Radio mode.

    • Scott Lemieux

      Good point. No, great point.

    • John

      Joe, you’ve mistaken a Kulturkampf for a fit of spite. And we all know that massive governmental campaigns of anti-Catholic discrimination and persecution of the Catholic Church hierarchy are protected by the 14th amendment, so the courts clearly have no right to intervene in a Kulturkampf.

      • Anonymous

        Of course, whats particularly insane about Scalia citing the Kulturkampf as a positive thing is that Scalia is Catholic.

  • Joe

    Can’t wait to hear the orals today — SCOTUSBlog tells me Kennedy was VERY concerned about decided the broad question now, but open to denying standing. Scalia probably feels about Olson as he felt about Kennedy in Casey — what a turncoat!

    • Glenn

      Best line of the day goes to Ted Olson (if you’re a legal geek): “Well, let’s not spend too much time on independent counsel provisions…”

      • Joe

        Scalia: Had your back there and this is how you repay me?

        • Joe

          [btw unlike my reply, the above was an actual quote]

  • howard

    to my amateur’s eye, scalia was always a narcissistic right-winger, but over the last, oh, 15 years or so (a period that tracks his son’s ascension to made man status on the right), he’s moved on to total thuggery.

    is that just an amateur’s viewpoint, or do the professional court watchers feel the same way?

    • Scott Lemieux

      He’s probably gotten worse, especially at oral arguments.

      • rea

        It’s as if, after Bush v Gore, he came to realize that he wasn’t bound by precedent, logic, or sense.

        • Snarki, child of Loki

          Or “The Dignity of the Court”

          Yeah, that ship has sailed.

          • Phoenix_rising

            Sunk. But who’s counting?

        • DrDick

          Not to mention reality.

        • howard

          rea, i almost specifically mentioned bush v. gore and his opinion that so obviously dripped with contempt for voters as a point in time for the worsening to be noticeable.

        • NonyNony

          I think it has to do with the ascendancy of right-wing news/talk in the late 90s/early ‘aughts.

          Scalia often sounds a bit like some of my older relatives, who have been watching far too much Fox News and listening to far too much Limbaugh over the last 20 years.

    • josefina

      It occurs to me that Scalia really went off the rails when Roberts was named Chief Justice and Nino realized that he’d always and forever be an “associate justice.”

      Can’t be arsed to research this and I’m just putting it out there. (Much like Scalia’s declaration about the effects of same-sex parenting.)

  • As a general rule, whenever someone says “I have nothing against ______”, they have something against it.

    • catclub

      Also, when they say “It’s not the money, it’s the principle of the thing.” It’s the money.

      • Njorl

        I always liked, “It’s not the money, it’s the amount of money.”

    • witless chum

      I’m not racist, but…

      • Uncle Ebeneezer

        I don’t mean to sound cruel but…

        • Hogan

          I hate saying “I told you so,” but . . .

          • josefina

            No offense, but…

            • Glenn

              With all due respect…

              • “Whenever a fellow tells me he’s bipartisan, I know he’s going to vote against me.” — Harry Truman

              • Njorl

                Yes, but frequently, no respect is due.

  • Sly

    I’m not sure if the oral arguments in Holligsworth made the rounds yet, but I’m 20 minutes in and Scalia is already railing against gay adoption.

    • sharculese

      He’s not gay, so he’s not going to adopt one.

  • Barry

    Scalia: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. ”

    He seems to be implying that they can’t see judicial relief.

    • Hogan

      Not from him they can’t.

  • Glenn

    Well, he managed not to be too offensive today, but he did have this incredibly petulant (and lengthy, by SC oral argument standards) exchange with Olson demanding to know the precise date when marriage discrimination became unconstitutional, because otherwise he “can’t decide the case.”

    • Scott Lemieux

      Which also contained assertions about how the 14th Amendment was originally understood as prohibiting school segregation that are almost certainly false.

  • Uncle Ebeneezer

    Via Balkinization:

    JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?

    TED OLSON: When did it become unconstitutional to ban interracial marriage?

    JUSTICE SCALIA: Don’t try to answer my question with your own question.

    • Scalia actually said, “That’s an easy one; when we adopted Equal Protection” before whining about the rhetorical question. I’m not sure why Olson didn’t just say the same thing.

    • sibusisodan

      Scalia never ceases to amaze. He really said that? He went for the ‘I’m asking the question here’ route?

  • p
  • McKingford

    Scott’s point also highlights the bait-and-switch of the 14th Amendment. During the debate over the ERA, one of the key arguments against it was that the 14th Amendment already covered women: “It’s already in there!”. Once the ERA failed, the argument is that the 14th Amendment is limited to race: “if you wanted it to cover other things you could have passed another amendment”…

  • Philip

    “I’m a strict Originalist, Mr. Cooper, and I’m looking at a 14th Amendment that forbids any state from denying any person equal protection of the law,” Associate Justice Antonin Scalia said. “So, unless we are the most uncivilized society on the face of God’s green earth, I think we can all agree that a gay person is in fact a person. So what I’m saying is, who the fuck are we to tell a person who he or she can get married to? This is dumb. Can we talk about a real case now, please?”

    Can the Onion and the SCOTUS swap Scalias for a few days?

  • David M. Nieporent

    It’s just that the equal protection 14th Amendment concerns only racial discrimination, with particular attention to “discrimination” against white people, which is why the Freedman’s Bureau was considered unconstitutional by the framers of the 14th Amendment.

    Not this silly argument again.

    1) The Freedman’s Bureau was about former slaves, not blacks. (*)
    2) The Freedman’s Bureau was established by the federal government; the Fourteenth Amendment applies only to states.

    (*) Please spare me the pseudo-snarky quasi-rhetorical comments like, “What race do you think the former slaves were?” I am well aware of the answer. But that’s a disparate impact argument, and the 14th amendment does not reach disparate impact; a law applying to people who happen to be black is different than a law applying to people because they’re black, constitutionally (and logically).

    • Scott Lemieux

      The Freedman’s Bureau was established by the federal government; the Fourteenth Amendment applies only to states

      Is there any evidence that the framers of the 14th Amendment would have objected to institutions such as the Freedman’s Bureau at the state level? (You’ve already essentially noted the speciousness of your claim that slavery had nothing to do with race.)

      I am glad you’re conceding the hackery of Scalia’s argument that the federal government cannot practice affirmative action, though.

      • sharculese

        When you’re getting down in there to split all those hairs maybe you actually don’t see race?

    • rea

      the 14th amendment does not reach disparate impact

      Speaking as a lawyer, WTF?

      • (the other) Davis


        I think David is confusing evidentiary issues with substantive ones: Disparate impact alone is generally not sufficient evidence to demonstrate an Equal Protection violation, but disparate impact + evidence of intent will get you there. But the 14th Amendment necessarily reaches disparate impact — if there’s no disparate impact, how could there be an Equal Protection violation in the first place?

        • David M. Nieporent

          I think you’re the one confusing evidentiary issues with substantive ones. The 14th amendment only reaches disparate treatment, not disparate impact. Of course evidence that a policy affects groups differently can be evidence of disparate treatment. But without actual discriminatory intent, there’s no disparate treatment and no constitutional violation.

          See, e.g., Washington v. Davis, 426 US 229, 239 (1976); Arlington Heights v. Metropolitan Housing Development Corp., 429 US 252, 265 (1977); Personnel Administrator of Mass. v. Feeney, 442 US 256, 273 (1979).

          To be sure, disparate impact will violate some anti-discrimination statutes, but not the 14th amendment.

    • VCarlson

      Kind of like companies not discriminating against women, just people who can get pregnant?

  • brad

    I have to admit, if I were ever diagnosed with a terminal illness I’d be tempted to take Scalia and Thomas out with me.

    Don’t worry, secret service, I’m in good health and my family has no such history.

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