Judging A Justice: Antonin Scalia And The Verdict Of History

Your mother probably taught you that it’s impolite to say something negative when a person dies. 

There’s some truth to that, but in the case of public figures whose actions and decisions affect the lives of others, we must not don blinders. Such individuals deserve a frank assessment of their legacy.

This brings us to Supreme Court Justice Antonina Scalia, who died Feb. 13 while visiting a hunting ranch in Texas. Scalia, who was 79, had served on the high court for 30 years. During that time, he emerged as the most vocal member of the court’s conservative wing. He was known for his aggressive style, which more often than not lapsed into sarcasm.

Conservatives portrayed Scalia as a towering intellectual giant. Most court observers, even liberal critics, acknowledged that Scalia was smart. But his intelligence took him only so far. Scalia’s legal theory – he claimed to embrace “originalism” – became a type of tunnel vision. He was so focused on the Constitution as written in 1787 that he couldn’t see the people off to the sides.

Those people were women, religious and racial minorities, LGBT Americans and others who sought entry into the American experiment as full and equal partners. Too often, they were excluded by Scalia’s narrow range of vision.

His cramped worldview could not encompass those who wanted no part of government-sponsored religion. Too often when it came to separation of church and state, one got the impression that Scalia’s view was a shrug and a claim of,“What’s the big deal? It’s just a prayer.” He failed to understand that the prayer wasn’t the big deal. Having it forced on you was.

For all his intelligence, Scalia was no scientist. His dissent in Edwards v. Aguillard, a 1987 case challenging a Louisiana law designed to promote creationism in public schools, was remarkably tone deaf to the damage fundamentalism masquerading as science can cause.

Scalia bought the argument that there were secular reasons for equating Bible stories with scientific fact, an absurd assertion. Had his side won the day, millions of children would have been indoctrinated in bad science and bad theology. There’s no telling how this might have affected their futures.

Scalia was a father, grandfather, spouse and friend. The people who loved him mourn his passing, and we extend our condolences to them. None of that, however, should stop us from fully assessing Scalia’s legacy and bluntly talking about what he got wrong. And he got much wrong.

His vision of the Constitution excluded too many Americans and left a lot of people on the outside looking in. His was a jurisprudence that too often looked back to the 19th century instead of forward to the 22nd.

Future historians won’t likely judge Scalia kindly. We who lived through his narrow vision of religious freedom, those among us who actually experienced its shortcomings, should not either.