“The only difference between the ideas endorsed by Trump and Scalia is that Scalia has a robe and a lifetime appointment.”
The man so described is the late Judge Antonin Scalia.
Readers might wonder why there’s an essay about the death of a USA Supreme Court judge on a site predominately concerned with Scottish, and Scottish international issues. Anything that happens in the USA, politics, fashion, television programmes, eventually makes its way to Britain. Being in love with most things USA, from muscle cars to hamburgers, the worst excesses of political thinking are sure to be embraced by deep thinking British conservatives sooner or later. The USA likes Pinochet’s regime … Downing Street welcomes him to his second home, Tory and Labour.
Appointed by Reagan to the Supreme Court – mediocrity begets mediocrity – Scalia stood for the worst neo-con orthodoxy you can image, the kind we suffer under now, and he followed it only as a strict Jesuit can. Indeed, he was educated by Jesuits. (Goebbels, Stalin, William Joyce – ‘Lord Haw-Haw’, Paul Getty, Juan Carlos, Peter O’Toole, and Bill Murray were all trained by Jesuits, oh, and Descartes, all risk takers.)
His rise as a lawyer was fairly swift, often described as ‘brilliant’ a man who used wit and humour to win his arguments. He must have been a right pain in the ass. Just as your logic was winning the day, Scalia jumped in with an acerbic joke. Like Trump, Scalia deployed humour as a weapon and had little patience for what he saw as political correctness.
In one celebrated instance, during arguments over legalising gay marriage, proceedings were interrupted by a protester yelling: “If you support gay marriage, you will burn in hell! It’s an abomination!” While the presiding chief justice tried to restore order, Scalia remarked drily that he thought the interruption was “refreshing, actually”. It was the kind of quip that cuts through an awkward moment, but when you think about it carefully, it endorsed Scalia himself as a rigid, Bible-thumping protestor.
The son of an Italian immigrant from Sicily, Scalia grew up in Queens, New York, and his Catholic faith played a big part in his judicial conservatism. He might not have been a Mafia don but there were times you wondered.
He enjoyed watching the Sopranos, not an indication of any latent aggression, of course, but it might have been preferable if he had cited the moral and human detective novels set in Sicily of Andrea Camilleri rather than a fictitious Mafia clan who fixed their domestic problems by bumping people off.
Living in his own private bubble
Scalia was a man who appeared strikingly out of touch with changing social views. With his fierce support of the death penalty and opposition to abortion his justice rarely had any mercy, his public pronouncements more Fox News than the Daily Show.
Here is Scalia’s view on homosexuality. In a 2003 case against anti-sodomy laws in Texas, Scalia claimed 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 homes”.
Scalia was a proponent of ‘originalism’ what you and I might term fundamentalism. In that he was right at home with creationists, the Bible belt, and the Tea Party. He believed that the American Constitution’s meaning is fixed, and should be interpreted in the way the framers originally intended. Whereupon he went right ahead interpreting it in the way he wanted it interpreted. If the tablets say an eye for an eye, then it’s fine and dandy to pluck out the eye of your enemy.
He was decidedly anti-progressive. That attitude ran over to protecting gun ownership, trying to overturn equal pay, and wanting states to be able to outlaw gay sex. He had a way of raising eyebrows and provoking fury, rather like some of the airhead pundits inflicted on us by the media. Like them he argued companies have similar rights to individuals, also insisting corporations have “constitutional religious rights to deny employees equal benefits on the basis of gender.” What a lovely man.
Scalia and women
In a 2011 face-to-face interview with another lawyer, a liberal one, Scalia said he believed women were not protected by the Constitution, thus reversing decades of progressive achievement. “The Constitution does not require discrimination on the basis of sex.” And digging a bigger hole for himself, he added, “There are some intelligent reasons to treat women differently.” Intelligent reasons? From Scalia? Could that have anything to do with some men seeing woman as good only for child bearing and rearing?
To the subject of abortion
On abortion, Scalia thought similarly. In that bastion of right-wing thinking, the Oxford Union, he played to the gallery. “The Constitution says nothing about the right to abortion”. Like any good Catholic, he believed a woman raped, or worse, raped and carrying a sexual disease that would affect the health of the child, had no right to terminate the pregnancy. Time and time again, Scalia came down on the side of the anti-abortionists. There’s always a man around to tell a woman better.
If you think Scalia something from the 19th century, here is the Vatican pronouncing only this day as I write: “Pregnant women exposed to the Zika virus and who may be carrying foetuses with serious brain defects should not be permitted to have abortions.”
Sometimes the only way to remain a Catholic is to ignore papal edicts completely.
He also compared gay sex to incest and bestiality and argued that states had the right to make gay sex illegal because “they view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive”.
Scalia’s views on race also drew wide criticism. During oral arguments for the affirmative action case Fisher v University of Texas last year, he made some particularly offensive remarks concerning people of colour, saying: “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school … a slower-track school where they do well.”
How did he get there?
If you’re beginning to wonder how in Hell’s name such a man got to sit on a great nation’s supreme court, the supposedly wisest judges in the land, then you are beginning to realise how the agents of cruelty took over the function of government and pissed on democracy. The answer is simple – because we let them. They are appointed, carefully chosen placemen to carry out the doctrine of power from the people. George W. Bush was another.. Scalia and Bush admired each other.
As on legal commentator observed, Scalia “was the most three-dimensional justice with an often two-dimensional worldview. History will likely remember him as someone who was gloriously, powerfully on the wrong side of so many important questions. But history will surely remember him.”
Remembered for all the wrong reasons
I have a feeling that last prediction is wrong. He will be in the Law’s history books, more likely as somebody who divided the Supreme Court in case after case, but the rest of us will be happy to forget him.
The urgent job now is for the President to appoint a liberal-minded replacement before his term is over, and to do it ignoring the extremists screaming for the appointment to be delayed, just in case loud-mouthed lumberjacks Trump or Crux wins the presidential race.
We are expected to give powerful men such as Scalia respect, pillars of the community giving their best to the service of the state. But a fine education, and a place at the top table has never denoted a certainty of piercing intelligence, good sense, free of bigotry.
Ironically, Scalia died in his sleep on February 13th 2016, while on a quail hunt. The association of quails with the infamous Iraq aggressor Dick Chaney is significant. Chaney was the man who shot a fellow hunter in the face and chest, but the victim apologised to Chaney. Scalia defended Chaney.
If ever there was an example of a judge as stupfyingly stupid as any man Scalia was it.