Writing at the Washington Post, Janell Ross makes the extended case that Justice Scalia “snubbed civil rights at every turn.” This charge is not only manifestly and provably false, it betrays a fundamental difference in legal philosophy between Justice Scalia and his progressive critics. But first, let’s deal with the falsehood.
To presume that Justice Scalia’s “snubbed civil rights at every turn,” one would have to ignore his decades-long defense of the Bill of Rights. Scalia’s constitutional jurisprudence not only resulted stronger protections for religious liberty, free speech, freedom of association, and the right to keep and bear arms, it also resulted in strong protections for criminal defendants — including disproportionately black and Latino defendants. As Slate’s Robert Smith notes, Scalia was “often a friend” of criminal defendants:
Scalia’s opinions for the court—and, as ferociously, his dissents—have shaped the landscape of protections afforded to criminal defendants. Charles Ogletree, a famed public defender, adviser to President Obama, and Harvard Law School professor, said of Scalia, a brilliant, colorful, towering giant of the legal community who died suddenly on Saturday at the age of 79, “We are from different worlds, but we both appreciate the Constitution and the Bill of Rights.”
Smith is fair enough to outline the “myriad” ways that Scalia protected individuals from the power of the state, but it’s plain that Smith does so grudgingly:
If Scalia was a champion of those rights, he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the “original meaning” reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure. Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an “unwavering defender of the written Constitution.”
But that’s the key to Scalia’s jurisprudence. Unlike a progressive jurist, who often begins his or her analysis by asking how the facts and law can be argued to advance the cause of social justice, Scalia began — and usually ended — his inquiry with the text of the Constitution and the intent of the drafters. Thus, the law often dictated outcomes that he may or may not have preferred, but he felt were mandated by the text. And the text mandates strong protections for civil rights and civil liberties.
That brings us back to Janell Ross’s real beef: Justice Scalia wasn’t a progressive. He instead steadfastly opposed to legal arguments that reached outside the text and history of the Constitution, especially when those arguments contradicted the Constitution itself. For example, when it came to racial preferences like affirmative action, he insisted on reading the Fourteenth Amendment’s famous Equal Protection Clause as mandating — imagine this – equal protection:
Scalia was a forceful, some might say singularly disdainful, legal force in the war against affirmative action and various civil rights matters. In his years on the nation’s highest court, he openly ridiculed claims made by university administrators that building a diverse student body or maintaining student diversity in classrooms served an educational or greater social purpose. He equated attempts to extend civil rights protections to LGBTQ Americans to an effort to establish special legal status or special rights under the law, and made the same argument about efforts to protect the rights of minority voters.
In tracking his legal history, Ross comes back again and again to the issue of racial preferences:
Scalia . . . made plain his personal and legal disdain for any kind of program that involved race, gender or ethnicity-conscious decision-making. Municipal, state and federal government contract award policies, college admissions programs and the like were all, in the Scalia view, wrong, in this respect.
In the 1980s and ’90s, Scalia wrote opinions making plain his views on any form of affirmative action: The government could not and should not create so-called “racial preferences” to address past discrimination, according to him. This, he argued, amounted to a system of racial privileges. And that logic continues to shape, if not define, the way many people who oppose affirmative action programs now view them.
She also takes aim at his gay rights jurisprudence, but notably fails to describe how any of her preferred outcomes would be consistent with his declared judicial philosophy or that his judicial philosophy was motivated by animus against any class of Americans.
At the end of the day, Ross hasn’t demonstrated that Scalia was hostile to civil rights. Indeed, many of his decisions protected civil rights, including the civil rights of Americans of every race, creed, color, and sexual orientation. She’s merely proven what we already knew – that he wasn’t a judicial progressive. And that is a very good thing indeed. A nation that forsakes free speech, religious liberty, due process, and the Second Amendment for the cause of social justice is a nation that ultimately rejects the very notion of “civil rights” in favor of a progressive identity politics that incompatible with the text, history, or spirit of a nation committed to the principle that all its citizens should enjoy the equal protection of its laws.