Justice Antonin Scalia

  • December 18, 2015
    Guest Post

    by Tanya WashingtonProfessor of Law, Georgia State University College of Law. Follow the professor on Twitter @Profwashington8

    Perhaps.

    But, more important than how his comments are perceived is how they frame the debate about affirmative action and how they will inform the Supreme Court’s decision in Fisher v. University of Texas at Austin

    The issues before the Court center on whether the means of obtaining the racial diversity that serves educational prerogatives is narrowly tailored and therefore constitutional, and not whether the end to be achieved (educational diversity) is a compelling and constitutional goal. Though the constitutionality of educational diversity was settled as a matter of law in Grutter v. Bollinger in 2003, the comments of several justices, including Justice Scalia, during oral arguments in Fisher suggest that its constitutional future is far from certain. 

    In oral arguments before the Court on December 9, 2015, Justice Scalia made the following controversial statements about the legitimacy of educational diversity: 

    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. . . . One of the briefs pointed out that most of the Black scientists in this country don't come from schools like the University of Texas. . . . They come from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too fast for them. . . . I'm just not impressed by the fact that the University of Texas may have fewer [Blacks].  Maybe it ought to have fewer. And maybe some you know, when you take more, the number of Blacks, really competent Blacks admitted to lesser schools, turns out to be less. 

    Justice Scalia is not the first justice to express these views.  In his dissent in Grutter v. Bollinger Justice Thomas observed, “[O]vermatched students . . . . find that they cannot succeed in the cauldron of competition. And this mismatch crisis is not restricted to elite institutions.” These views tap into the perception of affirmative action as a way of admitting “unqualified” students of color into colleges and universities where they cannot compete.  

  • September 24, 2015

    by Jim Thompson

    Dan Levine and Kristina Cooke at Reuters discuss a recent study that found that justices who are elected reverse death penalty decisions at less than half the rate of their appointed counterparts. 

    In The Baltimore Sun, Colin Campbell reports that juvenile suspects in Maryland will no longer be shackled during court hearings.

    At the Center for American Progress, Ryan Erickson, Sarah Jane Glynn and Heidi Williamson consider seven ways in which “policymakers and advocates can help women bolster their families’ economic security.”

    Mark Joseph Stern at Slate writes about Supreme Court Justice Antonin Scalia’s recent attempt to undermine the Supreme Court’s same-sex marriage ruling during a speech at Rhodes College. 

    Tuesday, Ohio State Reps. Kathleen Clyde (D-Kent) and Stephanie Howse (D-Cleveland) introduced the Ohio Equal Pay Act. This legislation aims to address the enduring problem of unequal pay between men and women.

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • February 17, 2015

    by Caroline Cox

    At MSNBC, Irin Carmon discusses her recent interview with Justice Ruth Bader Ginsburg that touched on abortion rights, race, and politics.

    Julia Preston of The New York Times reports that a federal judge has ordered a halt on President Barack Obama’s executive actions on immigration.

    At The Washington Post, Linda Hirshman argues that Judge Roy Moore actually helped the fight for same-sex marriage through his vocal opposition.

    At Hamilton & Griffin on Rights, Leslie C. Griffin writes that a new case involving a church arguing it is entitled to worship on public school grounds confuses the line between worship and speech.

    Nina Totenberg of NPR reports on an event with Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg that she moderated.

  • February 2, 2015

    by Caroline Cox

    Geoffrey R. Stone writes in the Huffington Post about campus sexual assault and argues for a more thoughtful approach from universities “to keep their students safe and to ensure that they can live and learn in an environment free from sexual violence.”

    At The Week, Andrew Cohen considers the lessons of Georgia’s recent decision to execute a developmentally disabled man.

    In The Atlantic, Kent Greenfield asserts that corporations should shoulder greater responsibilities if they are to be considered people under the law.

    Cristian Farias argues in The New Republic that Justice Scalia could be the decisive vote on the Affordable Care Act.

    In Slate, Jamelle Bouie contends that public apathy has led to significant criminal justice reform, but larger support is needed to tackle the biggest problems.