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Contrary to Popular Belief

Contrary to Popular Belief

By Ed Cohen

Photo by Joanne Lee
Supreme Court justice Antonin Scalia took the long view of his dissents on major decisions. He passed away on Feb. 13, 2016. He visited the Mission Campus in October 2015.

Antonin Scalia hoped history would prove him right.

The longest-serving member of the current U.S. Supreme Court, Scalia made a career out of dissenting from the majority, usually on “originalist” grounds. He and fellow originalist Clarence Thomas regarded the Constitution as a formal legal document that means only what it and its amendments meant when they were ratified.

Most other recent justices and legal scholars have taken a more flexible view. They think the Constitution can be reinterpreted by the high court over time to accommodate new realities and evolving standards. Under the “living” Constitution perspective, it is not always necessary to go through the difficult process of ratifying amendments.

Scalia, appointed to the court in 1986 by President Reagan, often found himself on the losing side of major decisions, such as the 2015 ruling upholding same-sex marriage. After a speech at Santa Clara University on Oct. 28, 2015, he was asked what he is trying to accomplish when he wrote a dissenting opinion.

He said he hoped to influence today’s law students. “I have given up on the current generation of lawyers.”

Later, however, when asked about dissents from history he particularly admires, he recalled a famous World War II-era decision. 

After the Japanese attack on Pearl Harbor, President Roosevelt signed an executive order that allowed the War Department to force American citizens of Japanese into internment camps out of concern for national security. The action is now regarded by many as racist and an abuse of power. But in Korematsu v. United States, the Supreme Court’s majority upheld it.

Associate Justice Robert H. Jackson, who had earlier served as attorney general under Roosevelt, wrote the dissent. He decried the order as an unconstitutional expansion of executive authority and a “danger to liberty.

Scalia said, “One of the values of a dissent is it’s nice to know that at least somebody in the court realized that that was wrong and gave voice to it in an eloquent manner. It makes you a little more proud of the court, and of the country.

A familiar face

Scalia’s son John, an attorney in Washington, DC, earned a bachelor’s in history from Santa Clara in 1987, and the justice has returned to campus several times to talk to law classes. His visit in Fall 2015 included a speech to members of the campus community and invited guests followed by a session in which he answered questions submitted by people in the audience.

In his prepared remarks, Scalia explained his “originalist” view of the Constitution and said the living-constitution approach equates to telling the nine-member court, “[C]ome govern us. Write the constitution you think we deserve.”

Asked about the origins of the living-constitution perspective, he said it began in the 1920s in cases involving the Constitution’s due-process clause. The Supreme Court ruled that certain liberties “rooted in American tradition and fundamental to a democratic society” were so important that no process could suffice to take them away. The precedent was set in a case involving the right to direct the education of one’s children. The court struck down a law that prohibited families from teaching their children German. 

The justice said he would “join a revolution” if the government tried to take away such a right today. “But I hate to tell you, it’s not in the Constitution.”

And neither is the right to marry as one pleases, he said. Scalia called the decision allowing same-sex-marriage a particularly egregious example of reading new rights into the Constitution.

 “It’s a slippery slope,” he said, “and down at the bottom of the slope—and I mean it is the bottom, I can't imagine how you can go any further—is same sex-marriage.”

An unrepresentative court

Scalia noted that while the court has taken on, in his view, the role of lawmaker, its membership hardly reflects the American electorate. Five of the nine justices were raised in New York City or New Jersey.

“And in a nation that is overwhelmingly Protestant, my court has six Catholics”—including Scalia himself—“and three Jews. Not a single evangelical Christian, even though 40 percent of the country is evangelical Christian.”

Not always a conservative

Scalia denies that being an originalist equates to being a conservative.

He voted with the majority in a case that struck down a ban on flag burning. That legislation was popular with many cultural conservatives, but Scalia said he believes the First Amendment protects flag burning as free expression.

This stance didn’t win him any points at home.

He mentioned that the morning after the decision came down his politically conservative wife signaled her disagreement over breakfast by humming “You’re a Grand Old Flag.”

On corporations having the same rights as people

The justice defended the Supreme Court’s 2010 decision in the famous Citizens United case, which ruled that unions and corporations have First Amendment rights, including the right to contribute to political campaigns. If that weren’t the case, Scalia said, corporately owned newspapers, television, and radio stations wouldn’t have freedom of expression.

“If you’re going to overrule Citizens United, you have to not allow The New York Times to endorse a candidate.”

No doubt on the death penalty

Scalia said the death penalty is not only constitutional but any manner of execution is constitutional as long as it is no more cruel or unusual than the manner accepted by society at the time the Bill of Rights was written.

The method at that time, he said, was hanging.

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