The Racially Insensitive Legacy of Justice Antonin Scalia

People look at a portrait of Justice Antonin Scalia displayed near his casket in the Great Hall of the Supreme Court in Washington, February 19, 2016.

Supreme Court Justice Antonin Scalia, who died suddenly last week at age 79, will be remembered as an articulate proponent of “originalism,” the specious legal theory that the law must adhere to the words and intent of documents as originally written. Such an approach is particularly problematic when applied to the U.S. Constitution, whose authors could and often did legally own human beings as slaves.

To his critics, who argue that the Constitution is “a living document” subject to reinterpretation to fit changing attitudes, Justice Scalia offered ridicule. Speaking in 2005 at the Woodrow Wilson International Center for Scholars, he mocked those who disagree with his legal interpretation of the Constitution:

I am one of a small number of judges, small number of anybody—judges, professors, lawyers—who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. …

This is such a minority position in modern academia and in modern legal circles that on occasion I’m asked when I’ve given a talk like this a question from the back of the room—“Justice Scalia, when did you first become an originalist?”—as though it is some kind of weird affliction that seizes some people—“When did you first start eating human flesh?”

It’s a laugh line, one that endeared Justice Scalia to conservative activists. To listen to his adoring, conservative fans, Scalia was a witty, passionate constitutional purist, a man who viewed the nation’s founding document as a fixed star hovering over America that every generation was to orbit without so much as a wobble of dissent.

And the fact that Justice Scalia’s right-wing acolytes revere him for giving so charming a voice to their reactionary views illustrates how damaging the late justice’s 29-year-tenure on the Supreme Court has been to the cause of civil rights and race relations. Indeed, Scalia displayed a joyous, cherubic face while he wielded an intellectual Howitzer to blast away the hard-earned legal supports for racial opportunity that briefly followed the civil rights movement.

The list is long and damaging, reflecting a view of jurisprudence that is, to put it mildly, racially insensitive to black and other historically disadvantaged Americans. For example, in the 2013 Shelby County v. Holder opinion, he voted with the conservative majority, agreeing against the evidence and logic that the Voting Rights Act was a “perpetuation of racial entitlement” for black and other racial minority voters.

In a series of affirmative action cases, Justice Scalia showed his true colors, vehemently opposing any use of racial consideration in college admissions. His concurring opinion in the 2014 Shuette v. Bamn decision not only rejected the programs to level imbalances in American society that the men who wrote the Constitution created but also decried previous Court decisions supporting affirmative action as a “sorry line of race based admissions decisions.”

In another, more recent example from last year’s oral arguments in a case challenging affirmative action, Justice Scalia impugned the capacity of black college students to do well at prestigious white universities, suggesting they might do better at a “slower-track school.”

Those comments were roundly condemned by a gauntlet of civil rights lawyers and congressional leaders, including Senate Minority Leader Harry Reid (D-NV). “It is deeply disturbing to hear a Supreme Court justice endorse racist ideas from the bench of the nation’s highest court,” Reid said in comments on the Senate floor.

But Justice Scalia’s fans cheered him on, encouraged that the conservative justice was speaking to them and that his comments upset liberal activists. “[T]hat’s just further reason to believe that the people screaming at Justice Scalia right now don’t even believe their own dumb, dishonest argument,” Dan McLaughlin wrote for The Federalist.

This racially charged and divisive legacy was no accident; it was deliberate. There existed a master plan—set loose with the election of President Ronald Reagan in 1980—aimed at “turning back the clock” on civil rights, as former Solicitor General Drew S. Days III so aptly described it in a 1984 scholarly paper. In his article—published by Yale Law School, where he serves as an emeritus law professor—Days makes the point that the Reagan administration “inadequately enforced and otherwise undermined, if not violated outright, settled law in the field of civil rights.”

Justice Scalia and President Reagan both charmed conservatives with smiling dispositions as they dismantled the civil rights protections that came in the wake of President Lyndon B. Johnson’s Great Society. Washington Post reporter Robert Barnes makes the same point—without the overt racial observation—in his Scalia obituary:

Justice Scalia, the first Italian American to serve on the court, was nominated by President Ronald Reagan. He took his seat Sept. 26, 1986, and quickly became the kind of champion to the conservative legal world that his benefactor was in the political realm.

Justice Scalia was an outspoken opponent of abortion, affirmative action and what he termed the “so-called homosexual agenda,” and his intellectual rigor, flamboyant style and eagerness to debate his detractors energized conservative law students, professors and intellectuals who felt outnumbered by liberals in their chosen professions.

Justice Scalia’s tenure on the Supreme Court overlapped with the court’s shifting role in race relations. It’s not unfair to point an accusing finger in his direction. Scalia’s eloquent expression of legal theory laid the foundation to destroy a generation’s effort to narrow the opportunity gap in America.

Sam Fulwood III is a Senior Fellow at the Center for American Progress and Director of the CAP Leadership Institute. His work with the Center’s Progress 2050 project examines the impact of policies on the nation when there will be no clear racial or ethnic majority by the year 2050.