Legal scholar argues that the 'myth' of Justice Scalia conceals the truth about his 'dangerous' legacy

Legal scholar argues that the 'myth' of Justice Scalia conceals the truth about his 'dangerous' legacy
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During his eight years as president, Ronald Reagan appointed three justices to the U.S. Supreme Court: Sandra Day O'Connor in 1981, libertarian Anthony Kennedy in 1987 and far-right social conservative Antonin Scalia in 1986. Scalia was by far the most extreme of the three, and law professor Eric Segall examines the late jurist's influence in a scathing article published this week by the Dorf on Law blog.

Segall doesn't mince words in his article. The law professor, who teaches at Georgia State University, slams Scalia (who died in 2016) as an extremist and a reactionary who was hostile to "women, people of color, LGBTQ folks, and non-Christians." What he finds so disturbing, though, is that many public figures continue to honor Scalia and venerate him as an upstanding example of a justice.

"Justice Scalia's opinions and heated rhetoric in civil rights cases should disturb people of even moderate sensibilities," Segall explains. "It must be remembered, of course, that Supreme Court justices should be judged according to the values of the times in which they lived. There are numerous Supreme Court Justices, maybe most justices prior to 1954, who we still honor and who undoubtedly held racist, sexist, and anti-LGBTQ views. But Justice Scalia made all of the statements…. in the last 35 years."

Segall goes on to cite specific examples.

"In 1996," the law professor notes, "he was the only dissenter in a case requiring the Virginia Military Institute, an elite state-funded military college, to accept women after it refused to do so for over a century. Scalia argued that courts should defer to all but the most irrational of laws that discriminate against women. Even Chief Justice William Rehnquist, an opponent of civil rights progress for decades, disagreed with Scalia in the VMI case."

Segall notes that Scalia "voted to strike down every affirmative action law he ever faced," and his "dissents and rhetoric about gays and lesbians bordered on the medieval." One of those dissents was in 2003's Lawrence v. Texas, a landmark ruling that struck down a sodomy law in the Lone Star State as unconstitutional.

"In another case," Segall observes, "Scalia compared homosexual conduct to murder and bestiality. When he was later asked about these statements by a gay Princeton student, he responded, 'If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things? I don't apologize for the things I raise.'"

And despite the fact that Scalia is held up as a principled advocate of "originalist" interpretation of the Constitution, Segall contends that his methodology was highly selective. Scalia only appealed to originalist ideas when they suited his purpose, and he was often happy to overlook historical arguments about what the framers thought when he wanted to achieve an ideological objective, according to Segall.

In light of all this, Segall is highly critical of law schools that have decided to honor Scalia.

"The Republican Party still views Scalia as their hero, but that is what we would expect from a political party either hostile to or indifferent towards the issues facing people of color, women, religious minorities, and the LGBTQ community," Segall writes. "But law schools and great universities should know better…. The myth that Antonin Scalia was a principled, great jurist is one of the most dangerous misconceptions in American politics. He thought nothing of disparaging people unlike him as well as insulting even his fellow justices. Far from being a role model for our law students, he should be an example of how judges should not act."

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