Antonin Scalia, who died on Saturday after nearly three decades as a Supreme Court justice, is already being remembered as a giant of conservative legal theory.
It is telling that his brilliance and wit have elicited effusive praise from his eight remaining colleagues on the court, including the liberal justices with whom he tangled vigorously.
But Scalia’s influential constitutional interpretations were often accompanied by colorful -- even offensive -- remarks that help explain why he, more than the other conservative justices, became the object of widespread scorn among progressives.
Here are some of the most controversial things Scalia has said over the course of his long career:
1. He compared laws banning homosexual behavior to laws prohibiting bestiality -- or murder.
Scalia, like other conservative jurists, has argued that states are free to permit discrimination against gay people, including by banning same-sex marriage, as a matter of states’ rights. But Scalia went out of his way to argue that states can infringe on gay rights specifically because of how immoral he considered homosexual behavior.
That includes the act of gay sex, which Scalia said a state should be free to ban, dissenting from the Court’s landmark 2003 ruling outlawing anti-sodomy laws nationwide.
“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices,” Scalia wrote, citing a previous court decision upholding an anti-sodomy law. “Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them."
But he made clear that it would be difficult, if not impossible, to “cabin” the decision so as not to open the door to overturning anti-bestiality laws. As he saw it, anti-sodomy laws spring from similar moral concerns.
“The impossibility of distinguishing homosexuality from other traditional ‘morals’ offenses is precisely why Bowers rejected the rational-basis challenge,” Scalia wrote.
(Head over here for some of Scalia's funny and ridiculous, but slightly less provocative, thoughts on the Supreme Court's June ruling upholding the Affordable Care Act's insurance exchange subsidies.)
I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even "animus" toward such conduct.
In an earlier dissent from a 1996 Supreme Court decision upholding local communities’ right to prohibit anti-gay discrimination, Scalia went even further. He implied that discriminating against gay people was within a locality’s rights because it was comparable to condemning murder.
“Of course it is our moral heritage that one should not hate any human being or class of human beings,” Scalia wrote. “But I had thought that one could consider certain conduct reprehensible -- murder, for example, or polygamy, or cruelty to animals -- and could exhibit even 'animus' toward such conduct. Surely that is the only sort of 'animus' at issue here: moral disapproval of homosexual conduct.”
When confronted by a gay law student about the comparisons, Scalia defended his remarks by saying banning anti-gay laws is a slippery slope to allowing the courts to restrict other moral judgments.
“I’m not comparing homosexuality to murder,” Scalia said. “I’m comparing the principle that a society may not adopt moral sanctions, moral views, against certain conduct.”
2. He compared Arizona's immigration law to states' right to forbid bank robbery -- or to exclude freed black people during the era of slavery.
Scalia offered yet another unusual analogy during oral arguments in 2012 over Arizona’s SB 1070 immigration law, which empowered the state to ask for the immigration papers of people it suspected of being unauthorized immigrants.
Scalia appeared to compare undocumented immigration to bank robbery. The federal government argued that Arizona was not permitted, as a state, to supersede federal immigration laws, since immigration is under federal jurisdiction. Scalia dismissed that claim, saying that just as states can pass laws prosecuting federal bank robbery violations, they can do the same regarding immigration.
“There is a federal law against robbing federal banks. Can it be made a state crime to rob those banks? I think it is,” Scalia asked Donald Verrilli, the Obama administration’s solicitor general. “But does the attorney general come in and say, you know, we might really only want to go after the professional bank robbers?”
[T]he States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks.
When Scalia’s colleagues struck down elements of the law -- albeit upholding its controversial “papers please” provision -- Scalia turned to precedent to condemn the decision -- specifically, laws that once allowed states to bar entry to free black people.
"[I]n the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks,” he wrote.
Elsewhere in his dissent, Scalia appeared to parrot conservative politicians’ talking points about the hardships caused by unauthorized immigration.
“Arizona bears the brunt of the country’s illegal immigration problem,” Scalia wrote. “Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy.”
He suggested that by throwing out parts of Arizona’s law, the court had effectively stripped the state of its existence as a political entity.
“The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively,” he wrote. “If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign state."
3. He insinuated that black people should be in "slower-track" colleges.
During oral arguments for a major affirmative action case in December, Scalia implied that a policy designed to increase the admission of people of color to Texas' state university system may actually harm them by pushing them into academic programs for which they are underqualified. African-American scientists, he suggested, tend to be graduates of more mediocre schools because being in classes more in line with their academic abilities ultimately allowed them to flourish.
“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 less -- a slower-track school where they do well,” Scalia said. “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.”
CORRECTION: This article previously misstated Donald Verrilli's title. He is the solicitor general, not attorney general.
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