In the next few days and weeks, two portraits of the late Supreme Court Justice Antonin Scalia are almost certain to emerge.
The first and the most common will laud Scalia as a lion of conservative thought and jurisprudence, a man of almost unmatched intellectual heft and commitment to conservative ideals who also maintained real friendships with justices with entirely different worldviews. He will be described as deeply religious and in possession of a healthy sense of humor. He was a man with such a way with the English language that his comments from the bench during oral arguments, his written opinions and his many, many speeches and interviews rank among the most memorable in the life of the court.
He was apparently quantifiably hilarious and hardworking, writing a huge volume of opinions and dissents. Scalia, the son of an Italian immigrant father and product of a rigorous Jesuit education, will also be described as a testament to the American story. This is what a life can become in a country where equality and opportunity reign and where religious institutions have made meaningful contributions to public life.
The second view of Scalia will dribble out in bits, a few lines here and there in news obituaries and reports of his death and in stories about the coming replacement fight. It's unlikely that this is going to be relayed at much length by most news outlets. But it is important.
Scalia was, like almost all the court's members, past and present, capable of decisions and theoretical positions that the public and court-watchers found surprising. But far more often, Scalia’s reactions ranked among the most reliably conservative – and sometimes the angriest – when it came to court decisions that appeared to clarify, extend or expand civil rights of any kind. He was a formidable enemy of civil rights.
Scalia was a forceful, some might say singularly disdainful, legal force in the war against affirmative action and various civil rights matters. In his years on the nation's highest court, he openly ridiculed claims made by university administrators that building a diverse student body or maintaining student diversity in classrooms served an educational or greater social purpose. He equated attempts to extend civil rights protections to LGBTQ Americans to an effort to establish special legal status or special rights under the law, and made the same argument about efforts to protect the rights of minority voters.
This language and this logic should sound familiar to anyone who has read or watched politics closely over the past 30 years. That is, in and of itself, a testament to the force and, for conservatives, the compelling quality of Scalia's ideas.
Scalia was a self-described constitutional "originalist."
Scalia believed that the Constitution can and should be read only in the precise way that the men who wrote it and its existing amendments intended. To him, an understanding of rights, justice and equality that, initially, failed to bar slavery and that made no effort to require states to give the poor, women or people of color the vote or, for the last group, federally guaranteed unconditional birthright citizenship was more than sufficient, once a few amendments had been made. Nor did it seem to matter that the Constitution, a document shaping the nation's legal and cultural life, had been drafted by an all-white collection of men who provided carefully for their own rights. The Constitution's real protections, prohibitions and provisions have all been explicitly identified.
Yes, Scalia was the son of an Italian-American mother and Italian-born immigrant father. The couple's New Jersey-born, New York-raised son earned his undergraduate degree at Georgetown University, where he graduated summa cum laude and was valedictorian. Scalia's academic success continued at Harvard University's law school and helped him begin a promising career at an Ohio law firm, followed by a stint teaching law at the University of Virginia.
A Nixon appointment brought Scalia into the fold of the federal government -- a fact worth noting when contemplating Scalia's reputation as an enemy of civil rights. Nixon has his own complex civil rights legacy. But he and his political advisers devised and implemented the by now well-documented collection of political tactics that sought to engage white voters and win elections by stoking racial animus and anxieties. This is not an interpretation. This is how Nixon's own advisers described their activities. And these practices remain an active part of American politics today. The fact is, in the 2016 race, the tactics -- known collectively as the Southern Strategy -- have quite possibly played a more overt and influential role than they have in decades.
President Ronald Reagan appointed Scalia to the D.C. Circuit Court of Appeals, an influential federal court and often the last stop before cases move on to the U.S. Supreme Court, the final stop in Scalia's own career. It was not long before Scalia ranked among the Reagan administration's top choices for any open Supreme Court seats. Scalia had developed a reputation as one of the most engaging and sharpest conservative thinkers, issuing widely read and discussed legal opinions from the circuit court bench. And the Reagan administration was reportedly eager to appoint the first Italian American to the Supreme Court in U.S. history.
In 1986, Reagan did. Ironically, in the following years, Scalia would enhance his public reputation as a conservative giant, as he made plain his personal and legal disdain for any kind of program that involved race, gender or ethnicity-conscious decision-making. Municipal, state and federal government contract award policies, college admissions programs and the like were all, in the Scalia view, wrong, in this respect.
In the 1980s and '90s, Scalia wrote opinions making plain his views on any form of affirmative action: The government could not and should not create so-called "racial preferences" to address past discrimination, according to him. This, he argued, amounted to a system of racial privileges. And that logic continues to shape, if not define, the way many people who oppose affirmative action programs nowview them.
On the bench and off, Scalia regularly made the kind of comments that are are trendy among today's conservatives. In 2013, Scalia told multiple reporters that he read neither the New York Times nor The Washington Post because they were, in his view, intolerably liberal. Scalia said he gathered his information from the Washington Times and assorted talk-radio infotainers and political commentators who host various shows.
In the years before those comments, Scalia more than signaled in court opinions, oral arguments and public speeches that he considered the court's decision to strike down a Texas law that criminalized sodomy an act of support for the "homosexual agenda." Scalia claimed that overturning sodomy laws -- which actually made a range of consensual sexual acts, even between heterosexual adults, illegal -- imperiled state laws barring bigamy, same-sex marriage, adult incest, prostitution, bestiality and obscenity. He also said that forcing the Boy Scouts of America to accept gay troop leaders amounted to an unconstitutional burden on the organization.
Scalia typically voted in favor of law enforcement interests in cases aiming to exclude information or evidence gathered against defendants during illegal searches and other unlawful police activities. He also told audiences he would like to do away with requirements that police read suspects their rights -- the Miranda warning -- when making an arrest.
More recently, when the court heard a case that eventually struck down gay marriage bans nationwide, Scalia issued one of his famously critical, if not hyperbolic, dissenting opinions reminding Americans of his belief that the Constitution need not protect anything -- or, it would seem, anyone -- that it did not protect at the time the document or its official amendments were approved.
Scalia wrote in a dissenting opinion made public after the gay marriage ruling: "When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases."
In 2013, Scalia described a provision of the Voting Rights Act that gave the federal government the tools and authority to approve almost all changes to voting practices, locations, requirements or procedures in states with a history of voter suppression as a "racial entitlement." According to him, the Voting Rights Act was a misleading name for the law in that it actually delivered and then protected an alleged special set of rights for minority voters. In this case the "special right" was the right to vote like all other citizens without interference and changes which effectively or intentionally limit minority voter influence in congressional districts.
Scalia claimed that only the court could eliminate the "injustice" inherent to the Voting Rights Act -- perpetrated against states -- because members of Congress would would face political consequences if they had the nerve to vote publicly against any portion of the law. To Scalia, members of Congress were the victims in need of legal protection, not minority voters.
In December 2015, Scalia drew a lot of attention when, during an affirmative action case, he opted to include the factually unmoored claims of a brief arguing against affirmative action programs in a question he posed from the bench. Many people did not like it. Audible gasps were heard. In case this has slipped your memory, here is what Scalia said:
There are those 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 ...
You may read his comments in their entirety here. And you can read a bit about the history behind them if you click the link below.
This year, Scalia said nothing during oral arguments in a still-pending case weighing whether states must count and consider all the people who live in a state when drawing new voting districts or must consider only eligible voters. Many noted his silence. The case could have major implications in the distribution of political power in the decades until the nation becomes one in which no racial or ethnic group makes up the majority (anticipated in 2044).
Immigrants -- who are not eligible to vote unless they become citizens -- often concentrate in particular areas. And, in a state like Texas, which saw such intense population growth between 2000 and 2010 that it gained new congressional seats, not only are many of those people too young to vote, but more than 90 percent of the population growth was made up of Latino, Asian and black children. (Similar demographic patterns exist around the country.)
So any court decision that comes down in favor of considering only eligible voters in the drawing of district lines effectively minimizes the political implications of the growing and changing population. It will sustain and essentially prop up the influence of the nation's aging white majority long after it no longer exists. And remember: Numbers -- even narrow majorities -- are everything in a democracy.
With Scalia's death, the voting case almost certainly ranks among those that make the administration, and for that matter the Democratic Party, eager to see President Obama nominate and the Senate confirm a liberal justice to replace him on the nation's high court. But the clarity the case provides about the prospects of the nearly all-white Republican Party should also illuminate just how hard any nomination battle may be. This case contains questions about as big as they come in a democracy.