Since Justice Antonin Scalia's death on February 13, 2016, liberal politicians and media (alongside their conservative counterparts) have been lauding him as a constitutional genius. President Obama called him "one of the towering legal figures of our time" and an op-ed in the New York Times by Jamal Greene entitled "Liberal Love for Antonin Scalia" proclaimed Scalia to be his "hero," saying "I have looked up to him for years. I am not alone among liberal legal scholars."
Speaking about Scalia, Justice Elena Kagan remarked that, "He is the justice who has had the most important impact over the years on how we think and talk about law." If this is true, that tells us something deeply disturbing about the current state of American politics. Because Scalia was far from a hero. He was a bigot.
During his years on the bench, Scalia was the posterchild of the hypocritical theory of "originalism," an approach to constitutional interpretation that opposes the idea of a "living constitution" and claims to interpret modern-day laws as our nation's founders would have. Scalia believed his originalist stance placed him in opposition to activists on the bench. Yet he was just as much of an activist as any of his counterparts, albeit for radical, right-wing positions. If we were to interpret the constitution as the founders intended, black people would still be slaves, women would be property, and the only people with basic human rights would be white men. In today's society, there should be no question that these are bigoted positions.
Yet Scalia was not only given a platform to forward his offensive vision for society on our highest court for 30 years, he is now being extolled by those from all sides of the political spectrum as "brilliant."
Among the choice statements Scalia recently made was one suggesting that affirmative action actually hurts black Americans because it places them in schools too advanced for their racial group:
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... 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 being pushed ahead in classes that are too fast for them.
He made this blatantly racist argument during the December, 2015, Fisher v. University of Texas affirmative action case.
Scalia's offensive remarks were not limited to Black Americans. He also had lots to say about queer folks and women. In his arguments against extending rights to gay individuals over the years, he compared homosexuality to murder, polygamy, incest and animal abuse. When it came to women, Scalia argued that: "Certainly the constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't." In other words, if a law that discriminated against women came before the Supreme Court, Scalia would find nothing wrong with it, using the logic that it would not be prohibited by the constitution.
And the list of those Scalia dehumanized goes on. When hearing Arizona v. United States in 2012, Scalia claimed that Arizona residents "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..." What does this argument have to do with originalism when the constitution itself was framed by immigrants? Unclear. What is clear is that to generalize that all immigrants are dangerous is not ok.
Do these views really sound like they come from someone who our political and thought leaders should view as a hero?
As one of the most powerful individuals in the country, whose opinions directly impacted the lives of Americans, Scalia advanced a morally repugnant worldview. The openings for progressive change created by Scalia's death are paramount. When we discuss his legacy, let's not sugarcoat who Scalia really was -- a bigot.