Bench Memos

Law & the Courts

The Parade of Posthumous Defamers of Scalia Continues

I certainly don’t believe that the dead are beyond criticism. But there is something very cowardly and, when it comes to factual allegations, downright suspicious about waiting until someone is dead to make public charges against that person.

In this Gawker article, reporter Sam Biddle provides a very one-sided and (at best) highly gullible account of charges that Antonin Scalia (in Biddle’s paraphrase) “went out of his way [while a law professor] to undermine young legal scholars, simply because they were black.” Specifically, according to Biddle’s account, three blacks claim that Scalia discriminated against them and other blacks by unfairly giving them flunking or poor grades.

Some observations:

1. Biddle’s bias is evident throughout, from his opening claim that Scalia “worked to make society less just for black Americans.” Biddle never raises, much less seriously considers, an obvious alternative hypothesis that would amply accommodate these 35-year-old charges: that Scalia was a tough grader and that blacks admitted to law school as a result of very large racial preferences routinely massively underperform their fellow students. (Add in, if you wish, that Scalia may well have been less eager than his peers to make special indulgences for underperformers.)

2. Charges like these would have been catnip to Senate Democrats and their staffers, both at the time of Scalia’s nomination to the D.C. Circuit and especially when he was nominated to the Supreme Court in 1986. If the charges of the primary claimant, Arnim Johnson, are to be credited (and, as we’ll see, those charges are hyperbolic and implausible in key respects), Scalia supposedly would have had a reputation as a “blatant racist” among black students at the University of Chicago law school.

According to a statement appended to the long Facebook post of his that Biddle quotes, Johnson and others submitted a letter to the Senate Judiciary Committee opposing Scalia’s nomination. Did Johnson inform the committee of his charges? If so, it’s evident that the committee found them not credible. If he didn’t inform them, why not? And how would Scalia’s supposed reputation have escaped the attention of the Senate?

3. In that Facebook post, Johnson claims that “Scalia flunked every black student who took his classes” one year. But while Biddle notes that Johnson was “wrong about at least one classmate,” that doesn’t lead him to question Johnson’s reliability.

As it happens, a lawyer named Arnim Johnson, Jr., who received his Illinois bar license in 1980, had his license suspended by the Illinois supreme court in 2004 and was ordered to take various actions for “chemical dependence.” He was suspended again for professional misconduct in 2011. If, as seems to be the case, this is the same Johnson, he might not be the most trustworthy witness. He also might not have been a very good student.

4. Johnson also claims in that Facebook post that he and other black students “brought [their charge] to the attention of acting Dean Norval Morris in several meetings.” According to Morris’s Wikipedia entry, Morris was “widely regarded as an advocate for the rights of inmates in prisons and mental hospitals” and was a close friend of Harry Blackmun and of arch-liberal Abner Mikva—hardly the profile of someone who wouldn’t have taken a credible charge seriously. Johnson ends up asserting that “no action was taken because the source of the information was private, confidential, and privileged,” but that strikes me as meaningless and diversionary blather. It’s far more plausible that Morris concluded that the charge was baseless.

5. Ben Streeter, a second long-ago student (and someone who passed Scalia’s class) complains that his administrative-law test “had a section of short-answer questions,” the answers to which “were something that had never been covered in class.” Streeter speculates that the questions “were the kind of thing that [Scalia] would talk to students about if students came by to visit him” but observes that “the only students who came by to visit him were in the Federalist Society group.”

So we’re supposed to take Streeter’s word, first, that the answers to long-ago short-answer questions hadn’t been covered in class; second, that even though Streeter apparently never visited Scalia during office hours, he somehow knew the “kind of thing” that Scalia would discuss during office visits; and, third, that Scalia, that brash evangelist of the unitary executive and of separation of powers, would have preserved some esoteric knowledge for those who visited him. Yeah, that sure sounds like the basis of a claim of racial discrimination.

6. The third long-ago student, Phillip Hampton, tells Biddle that he found it “very strange that almost every black student’s lowest grade was in Scalia’s class.” (Note the disparity from Johnson’s claim.) But that’s entirely compatible with the unsurprising hypothesis that Scalia was a tough grader (and less likely than his peers to make special indulgences to accommodate racial preferences).

Addendum: I had never heard of Sam Biddle before, but I now see that he earned Breitbart’s top honor as the “most heinously unpleasant Gawker writer.

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