A Reminder about Justice Scalia

In a recent post on The Volokh Conspiracy, Josh Blackman explained “How I Approach Unpopular and Unconventional Legal Views.” He extolled the late Antonin Scalia’s commitment to reach correct legal positions even when they diverged from his policy preferences. In support, Blackman provides a Scalia quote that I had forgotten, offering it as a “checkpoint” to prevent error, and evidently a standard to be emulated:

"If it were up to me," Scalia told the Philadelphia Union League Club in 2015, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” adding “But I am not king.”

Now in one sense – and in only one sense – I suppose it is admirable that Scalia was able to put aside such strongly held views and join two opinions that protected flag burning under the First Amendment.

But in another sense, it was plainly disgraceful for a Supreme Court justice to speak so contemptuously of other Americans. I’d venture that Scalia had no idea whether Gregory Lee Johnson (the defendant in Texas v. Johnson) or Shawn Eichman (the defendant in U.S. v. Eichman) were “scruffy-bearded,” let alone their preferred footwear. And of course, that doesn’t really matter, because Scalia was making a point of insulting everyone who disagreed with him about the propriety of certain expressive protests.

Perhaps it was just hyperbolic rhetoric for Scalia to announce that he would prefer to see protesters in jail, but Supreme Court justices speak with authority. Branding people “weirdos” is nasty and uncalled for. And if Scalia really did prefer to see non-violent protesters in jail, well, let’s just say it is a good thing that he was not king, and too bad that he otherwise exerted so much authority over other people’s lives. How much should we have trusted his judgment in other circumstances, where the First Amendment’s protection may not have been so clear.

For what it’s worth, it appears that Gregory Lee Johnson did have a goatee at some point in his life, but it was well trimmed as far as I can tell. Was he a weirdo? He was certainly unconventional. A self-professed revolutionary communist, he had grown up on a U.S. Army base (his step-father was a staff sergeant), and he quit high school to join the Merchant Marine. I haven’t been able to find comparable information about Shawn Eichman or his three codefendants, but of course, Scalia was making a broad generalization, not describing particular individuals.

Yes, yes, I know, that was just Nino being Nino, showing off the flair for depiction that was so often evident in his written opinions. Sorry, that doesn’t work. In a democracy, courts can only function if they have the respect of the public, and it is not much to ask judges to show some respect in return.

The past six years have seen a distressing coarsening of political expression in the United States. I wouldn’t say that it all started with Scalia, who, after all, passed away in 2016. But I also don’t think there is anything remotely admirable about demeaning protesters as “weirdos,” and it certainly doesn’t help to elevate such name-calling as an ideal.

Comments

[Jeff]

No doubt that Scalia contributed to the general hyperbolic depiction of Americans he did not like. Reagan did the same thing when as he set some models for diatribes from the right. https://www.youtube.com/watch?v=TZqQE51jJHE
But thanks for this accurate take down of Scalia.

[anon]

For all of you who watch MSNBC, or CNN, or read some of the posts here in the FL written by blatantly partisan attackers, apply the Lubet standard, and ask yourself, have you NO self awareness?

[Adam Lamparello]

Justice Scalia is among the most brilliant and influential legal thinkers (and writers) in the Court's recent history. First, unlike many 'living constitutionalists,' Scalia didn't manipulate the Constitution's text (see, e.g., 'penumbras' and 'substantive due process') to impose his policy predilections. His opinions in Texas v. Johnson and Employment Division v. Smith, along with several opinions interpreting the Fourth Amendment and Sixth Amendment's Confrontation Clause, reflect this fact. Second, his writing was powerful, engaging, and persuasive; legal writing students should read many of his opinions to see what it means to be an extraordianry legal writer. Third, Scalia had a clear constitutional vision and interpretive philosophy that, whether you agreed with it or not, led to clarity and consistrency in his jurisprudence (something you couldn't expect from, for example, Justice Kennedy).

Perhaps these are among the many reasons that Justice Ginsburg considered Scalia her best friend and most formidable adversary on the Court.

I'm not saying that Scalia was perfect. I disagreed strongly with some of his opinions. But his intellect and influence (along with his collegiality) cannot be understated. And as far as calling someone a weirdo, I can think of judges -- and professors -- who have done far worse.

[anon]

Adam

Well said. The folks who adhere to their "party line" use Scalia's name as a weapon, but, the truth is that nearly all have come over to his favored method of interpretation. He was a principled defender of the right of free speech and many other values that wouldn't be associated with the monster that they depict. Above all, he realized that nine lawyers in robes aren't the government of the United States and should avoid making policy, as opposed to resolving disputes according to law.

Today, the president stated that knowingly defying a decision of the Supreme Court is justified, if he can find a few folks in this big country to agree it is "worth a try."

That's his standard.

Crickets. Where is Steve Lubet's outrage here?

[Anonymous Bosch]

Speaking of institutions only being able to function if they have public's respect, this link below is to the most important piece to come out of the United States this year.

https://outsidevoices.substack.com/p/author-of-the-mega-viral-thread-on

As noted above by another poster, Steve, your preferred SCOTUS members consistently, predictably, and shamelessly lie whilst feigning to engage in constitutional interpretation. To modify one famous scholar's remarks to Congress on the matter: if the right-wingers on the bench adopted a form of living constitutionalism (so that they too could advance their policy preferences of the moment), you'd be up in arms.