I won’t miss Antonin Scalia.
What he brought to the American system of justice was neither fair nor just.
During my career as a trial court judge, I obtained an advanced law school degree in criminal law. The particular area I concentrated on was Constitutional Law.
I read every Death Penalty decision decided by the Rehnquist Supreme Court, which began at the same time that Judge Scalia became a member of that Court. The Rehnquist era lasted from 1986 to 2005.
Throughout that period Scalia almost never voted to reverse a death sentence. It didn’t matter what issues were raised even when accompanied by a claim of actual innocence. He almost always either affirmed when the appeal was denied or dissented when the rest of the bench voted to reverse. His opinions in support of what Justice Blackmun once described as the “machinery of death” were excessive to the point of being bloodthirsty. He erected or supported as many barriers as could be constructed, substantively or procedurally, to death penalty appellants challenging some fatally flawed trials and yet claim that there were no cases…” in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”
In Scalia’s world the execution of Cameron Todd Willingham never occurred and the fruits and successes of the Innocence Project did not exist.
I sometimes wondered how he would have reacted if one of his relatives or a grandchild had been unfortunate enough to find themselves on Death Row. Perhaps we might have found out what he was truly made of.
His disdain for the “damned and despised” as Clarence Darrow once described them, was not limited to death penalty appellants.
He railed against gay citizens in an opinion which struck down laws that criminalized sexual relations between consenting adults, proclaiming; “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Last year he double-downed on that moral judgement in his dissent in the decision that affirmed the right of gay people to marry.
In a recent case before the Court involving what role affirmative action might play in the admission policies of the University of Texas, Scalia cited some dubious research in a brief that suggested that African-American students might not succeed in a challenging academic setting and observed; “I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Before he arrived on the Court, death penalty laws were evaluated by whether they were consistent with “evolving standards of decency’ and the Constitution was considered to be a “living document” capable of being applied to the changing standards of a modern world. Scalia rejected this concept and, instead espoused something called an “originalist” and “textualist” interpretation that required it be applied according to the intent of the founding fathers or those who when it was amended. In short, the Constitution would have no more relevance to current times than the Dead Sea Scrolls.
There have been times throughout his career and in his opinions that he has sounded like Donald Trump in a robe with a pen. I’ve never expected much from Donald Trump, I did expect more from Scalia.