“I don't even have to read the briefs, for Pete's sake.” Of all the words Supreme Court Justice Antonin Scalia uttered, those 11 are the ones that defined him for me, though they came relatively late in his long and loquacious career in the law.
In an interview with a law professor, published in 2011 in California Lawyer magazine, Scalia dismissed any doubts about the constitutionality of the death penalty.
He was explaining his originalist approach: “We don't have the answer to everything, but by God we have an answer to a lot of stuff ... especially the most controversial: Whether the death penalty is unconstitutional, whether there's a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff... I don't even have to read the briefs, for Pete's sake.”
In Scalia’s originalism, virtually nothing was new under the sun, and the dismissive quote betrayed the intellectual arrogance that animated his opinions and dissents. No American of any ideology should have been comfortable with a Supreme Court justice so boldly displaying his prejudices in public.
The court’s decisions would be easier to accept, and the Supreme Court would maintain and even enhance its legitimacy, if we could believe that ideology did not trump impartiality from the start. But that’s how Scalia rolled -- more like a conservative talk show host than a jurist -- and I believe it damaged public confidence.
“He was a bigoted and arrogant man of overblown intellect who first decided the result he wanted and then came up with a rationale based on his strong political and social views instead of on a neutral legal analysis,” said William H. “Billy” Murphy, a former Baltimore judge and veteran attorney whose most recent clients include the family of Freddie Gray. “Time after time, Justice Scalia voted against the vital interests of working people, labor unions, blacks, women and gays, who largely despised him, and in favor of big corporations, wealthy individuals and Republicans, who almost universally loved him.”
I solicited comments on Scalia from Murphy and other attorneys, one a retired judge and long-time Republican, the day after the 79-year-old justice died in Texas.
While many commentators have called Scalia a giant of conservatism and some have proclaimed him the most influential justice of the last quarter-century, my sampling came up with dissenting opinions.
“Justice Scalia was a fraud in his creation of the concept that the court's opinions were to be guided solely by the original thinking of the authors of the Constitution,” said Dan Clements, a long-time Maryland attorney active in Democratic politics and a former president of the Maryland Trial Lawyers Association, now the Maryland Association for Justice.
“John Adams and Thomas Jefferson, as two of the primary developers of the Constitution, were of the clear view that the Constitution was a temporary document which would need serious amendment or replacement every 20 or 30 years, as the times dictated. Scalia used his position to be perhaps the biggest judicial activist on the Supreme Court in decades all the while making hypocritical comments condemning other justices’ activism.”
Charles G. Bernstein, a former federal public defender and retired judge of Baltimore Circuit Court, appreciated Scalia’s wit and intelligence, but believes his opinion in a landmark gun-control case was “something horrible for our country.”
That’s a reference to Scalia’s majority opinion in the landmark Heller decision (2008), which struck down, by a 5-4 vote, provisions of the Firearms Control Regulations Act of 1975 and asserted that the Second Amendment guaranteed individuals a constitutional right to own and possess handguns for self-defense. The ruling led two years later to the McDonald decision, which struck down Chicago’s gun-control laws.
Heller and McDonald accelerated challenges to many other state and local laws that restrict the possession and carrying of handguns.
“He was a great stylist and engaging personality,” says Bernstein, a longtime Republican who switched party affiliations to run for judge of Baltimore's Orphans Court in 2014. "He was protective of some important liberties such as the right of confrontation and free speech. But his hatchet job on the opening clause of the 2nd Amendment provides succor to the gun fanatics in our culture and hinders our continuing problems with gun violence.
“The opening clause is, ‘A well regulated militia, being necessary to the security of a free state ...’ Since we no longer have a militia, the right can be abridged, or reasonably limited. However, rather than following the basic interpretative rule that all words in a statute or Constitutional provision must be considered, Scalia negates this opening clause by calling it prefatory, and therefore ignoring it, thus leaving only the second clause with its ‘right to bear arms’ language unfettered by the opening limitation.
“This was not a conservative interpretation. It was a radical hatchet job upon the text with consequences which will continue to cost lives. ... America has handled at least two things badly, drugs and guns. Heller makes it that more difficult to fix our gun problems.”
Supreme Court historian Melvin Urofsky, who lives in Gaithersburg, told me in a podcast interview last fall that Scalia’s proclivity for acerbic comments and personal attacks in dissents were found to have trickled down to lower courts, where some judges have embraced Scalia-like rhetoric.
“The problem is, it’s fine that Scalia impresses us with turning a phrase but in terms of how that will affect future court decisions, it has very little impact,” noted Urofsky, author of Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue. “Most dissents took years before they had any effect [on the court]. If Scalia’s dissents are to have any impact at all, it’s not going to be through Twitter and it’s not going to be through contemporary newspaper accounts. It’s going to be because these issues are going to come up again and if Scalia’s dissents are intellectually powerful enough, they will have an impact. If not, they will be forgotten.”
Urofsky considers Scalia a failure in terms of what his appointment to the Supreme Court promised nearly 30 years ago.
“In 1986, when he was appointed by Ronald Reagan, conservatives were overjoyed,” Urofsky said. “They were finally going to get someone with the brains to be able to oppose William Brennan, who, although in a minority on the Rehnquist court, was still able to pull together majority decisions. They were finally going to get someone who would be the Brennan of the right.
“While Scalia has had impact, it hasn’t been the kind of impact conservatives were looking for ... He was essentially the William O. Douglas of the right. He dissented and didn’t care if anybody joined with him. Douglas was not interested in building coalitions, and often Douglas said, ‘The only soul I have to save is my own.’”
That, said Urofsky, was essentially Scalia.
Del. Sandy Rosenberg, a Baltimore Democrat and big-time Orioles fan, has a blog post today about his relationship with Scalia, developed in annual trips to Camden Yards and to the Supreme Court. "His original intent philosophy extended to baseball," Rosenberg writes. "He was not a fan of the designated hitter."