Sunday, November 20, 2016

Sanitizing Scalia

“Memories to be erased
And nasty old stuff you’ve been hiding”

The Harvard Law Review recently published its issue dedicated in memoriam to the late Supreme Court Justice Antonin Scalia.  I know the point of such exercises is to say nice things about the person memorialized.  But I would hope that even an academic such as Martha Minow, Dean of the Harvard Law School, whose position admittedly requires great diplomacy and efforts not to alienate a broad swath of students, faculty, staff, and alumni, would manage to eulogize Scalia without painting a false picture of her subject.  Unfortunately, I can’t recognize the Scalia she describes.

I don’t mean the personal aspects of Scalia that she reports in her contribution.  It’s her depiction of Scalia’s jurisprudential legacies that is unrecognizable to me as a constitutional law professor.  According to Dean Minow, among several of Justice Scalia’s legacies “is his commitment to liberty even for individuals whose actions deviated from his own values.”  Fortunately, I was not drinking anything when I first read this, so I didn’t short out my computer with a spit take.  Minow’s characterization is about as far from my understanding of Scalia as one can get.

The only evidence she offers to support her claim that Scalia was committed to protecting the liberty of people who had different values was his 1989 vote in Texas v. Johnson to uphold Joey Johnson’s constitutional right to burn a flag in protest.  Now, while Johnson was arrested after this year’s Republican National Convention for burning a flag in protest, I’ve seen no evidence that this is conduct in which he engages on anything like a daily basis.  Justice Scalia’s vote to protect it therefore wasn’t very costly to his conformist preferences, shielding only infrequently occurring behavior.

Contrast the Justice Scalia whose legacy I know too well, starting with a different case where Texas was squelching freedom.  Scalia dissented from the Supreme Court’s 2003 decision in Lawrence v. Texas that held unconstitutional a law that criminalized consensual adult sexual activity, between two men (as in that case) or two women.  That law sought to control the intimate conduct of people of the same-sex, even if they had been in a long-term committed relationship.  Justice Scalia could not accept that the Constitution protected our liberty to make such life-shaping choices.

Or consider Roe v. Wade, which in 1992 in Planned Parenthood v. Casey the Supreme Court sustained in modified fashion, retaining a significant measure of constitutional protection for the right to choose to terminate one’s pregnancy.  Justice Scalia dissented there, arguing that the Constitution affords no special protection for abortion rights (beyond the universal constitutional requirement that government not act wholly irrationally) and that the Court should overrule Roe.  Again, he showed no commitment to women’s liberty to determine something so fundamental about the direction of their lives in his Casey dissent.

Concurring in Washington v. Glucksberg, Justice Scalia voted against constitutional protection for a right of terminally ill patients to seek to enlist a willing physician’s assistance in ending their lives on their own terms.  Writing the lead opinion in Michael M. v. Gerald D., Justice Scalia rejected a claim that the Constitution protected the liberty interests of an unmarried father when the mother of the child he sired was married to a different man, even though the unmarried father played a role in the child’s upbringing in her early years.  Dissenting in Troxel v. Granville, Scalia argued that the Constitution did not protect parental rights, so that in his view a court could order a parent to allow someone visitation with her child based on what many members of the Supreme Court majority thought a mere disagreement over what would be overall best for the child.


Whatever his other accomplishments, Justice Scalia was hardly a friend of the liberty of people whose views he did not share.  It does neither him nor the country any good to pretend otherwise.  Sanitizing Scalia is, rather, perilous, particularly in this current political moment where facts are too commonly ignored and even denied.

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