Scalia v. The World: On Antonin Scalia

Michael O'Donnell in The Nation:

In a recent dissent that was joined by Justice Clarence Thomas, Scalia argued, astonishingly, that the Constitution does not forbid executing a demonstrably innocent man, so long as he has been given a fair trial first. (Justice John Paul Stevens, the senior liberal on the Court, responded in a concurring opinion that putting to death an innocent person would "be an atrocious violation of our Constitution.") In his dissent in Lawrence v. Texas, from 2003, in which the Supreme Court struck down Texas's anti-sodomy law, Scalia compared laws outlawing gay sex with those prohibiting bigamy, incest and bestiality. Having cleared his throat, Scalia then declared,

Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream" [and] that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.

Scalia's expression of base sentiments in fluid, vigorous prose is a strange blending of the high and the low--like a Catholic Mass in which the liturgy is led by a bearded hippie strumming a guitar and singing in Latin. Scalia attempted to qualify these ugly lines in the next paragraph of his dissent by insisting, "I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so." Scalia seems genuinely baffled at the widespread incredulity that increasingly greets such protestations. His trademark busy italics might convey a spirit of apolitical rectitude, but they can't conceal the striking overlap of his judicial opinions with socially conservative policy preferences.

If there is nothing more admirable than a judge forgoing personal beliefs to uphold legal principles, there is nothing more distasteful than a judge who claims to do so against strong evidence to the contrary. Scalia's purportedly neutral, apolitical jurisprudence has moved him to vote against affirmative action, protection for abortion, rights for gays and lesbians, and equal treatment of women, and in favor of practically unfettered capital punishment, gun ownership and the open embrace of Christianity by the state.