Scalia’s Ongoing Assault on Constitutional Interpretation, and Decency

April 18, 2013

by Jeremy Leaming

Whether Justice Antonin Scalia is toiling away in the cloistered halls of the Supreme Court or speaking before right-wing think tanks or groups of law school students he has over the years proven a knack for annoying large swaths of people. And does anyone believe Scalia cares?

What Scalia has done is to tamp down a handful of Supreme Court reporters who for years assured us the conservative justice was the high court’s sharpest thinker and nimblest writer and witty too. Those reporters, however, have had to give up the narrative thanks in large part to Scalia’s increasingly cranky, bizarre, racially insensitive, and unnecessarily over-the-top commentary. It has also helped that a lot more people call out Scalia for his ridiculousness. He might thrill American Enterprise Institute or the Federalist Society, but others paying attention are increasingly seeing a serial offender, with a wobbly way of interpreting the Constitution.

He’s on bit of a roll this year. In February during oral argument in Shelby County v. Holder, the case involving a challenge from a largely white community in Alabama to the Voting Rights Act’s integral provision, Section 5, Scalia said the Act perpetuates racial entitlement. But Scalia couldn’t stop there; he had to add flippantly that the reason Congress reauthorized the Voting Rights Act was that lawmakers couldn’t bring themselves to vote against a measure with such a “wonderful name.”

What these offensive and flippant asides have to do with the constitutional and other questions before the high court is anyone’s guess. It’s likely the acidity was all theatrics.

The high court in Shelby will hopefully decide the case by looking at the text and history of the Constitution, in particular the 14th and 15th Amendments, which give Congress great discretion  in creating and enforcing appropriate laws to ensure that states do not discriminate in voting. Scalia’s disdain for the Voting Rights was evident, so it is likely he’ll find a way to contort so-called “originalism” to argue for gutting the law’s primary enforcement provision. (Section 5 requires states and localities, mostly in the South, with long histories of suppressing the minority vote to obtain preclearance from a federal court in Washington, D.C. or the Department of Justice before altering their voting procedures, to ensure they do not intentionally or unintentionally discriminate against minority voters.)

This week during a talk before some law students in Washington, D.C., Scalia piled on, telling the students that Section 5 is an “embedded form of “racial preferment.”

George Washington University law school professor Spencer Overton pushes back against Scalia’s racially charged attack on the Voting rights Act.

“Scalia is skeptical of law tailored to prevent racial discrimination against people of color, even though other voting laws are tailored to address unique challenges faced by other populations,” Overton wrote for The Huffington Post. “Federal law, for example, mandates that states send absentee ballots to military and overseas voters early enough to be completed, returned, and counted. Federal language assistance requirements ensure that those with limited English proficiency can cast a meaningful ballot.”

And, as Overton noted, the is evidence is still strong, regardless of rhetoric from right-wing activists, that the states and localities covered by Section 5 continue to take steps to make it more difficult for minorities to engage in democracy.

In the same talk, Scalia also made a claim about the history of homosexuality that University of Chicago Law School Professor Geoffrey R. Stone in piece for The Huffington Post said has to make one “wonder whether Justice Scalia knows anything about the history of which he speaks.” Scalia had told a student that “homosexuality” is not a “new phenomenon." He said that when the 14th Amendment was adopted in 1868 most “places” considered it a crime.

“In fact, ‘homosexuality’ was not a crime at the time the Fourteenth Amendment was adopted," Stone continues. "What was unlawful was ‘sodomy,’ which was generally defined to include oral or anal sex, without regard to whether the couple who engaged in the act were of the same sex or the opposite sex,” Stone wrote. “There were no laws against homosexuality.”

Scalia’s wobbly grasp of some facts and strident ideology, however, are more worrisome than his annoying theatrics. He’s sitting on the highest court very likely trying to convince a majority of his colleges to join him in gutting the Voting Rights Act and potentially providing setbacks to the equality movement for the LGBT community. He’s an opportunistic "originalist" because he is so wedded to a right-wing ideology.