Supreme Court Justice Antonin Scalia is dead at 79. The influential conservative jurist was found dead of apparent natural causes in a West Texas resort, and his family and friends should have the space to mourn him. But before we hear people sing his praises and suddenly morph Scalia’s legacy into something we are unable to recognize, let us remember the judge for his record.
And that record was not kind to black people and those who care about civil rights and racial justice.
A Reagan appointee, Scalia was the longest-serving justice on the court. His critics remember him as a polarizing and intolerant figure and one of the most regressive voices in the federal judiciary.
A few years ago, he called the Voting Rights Act an “embedded” form of “racial preferment” for black people that discriminates against whites. “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes,” Scalia said. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?”
During recent oral arguments for the Fisher vs. University of Texas affirmative action case — in which a mediocre white woman shed white tears for not being admitted to college — Scalia promoted what is known as “mismatch theory.” Used by foes of affirmative action, this is the white supremacist notion that blacks, who are intellectually inferior, are set up for failure when they attend colleges for which they are academically unprepared.
Scalia said “those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school — a slower-track school where they do well.” He added: “One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas…. They come from schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Opposing a new trial for death row prisoner Troy Davis in light of evidence pointing to his innocence, Scalia chastised his colleagues, arguing that mere innocence is no reason not to carry out a death sentence:
This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.
In 1994, Justice Scalia voted against a petition to hear the case of Henry McCollum, a black man who, along with his brother, was wrongfully convicted of raping and killing an 11-year old girl as a result of coerced confessions and no physical evidence. McCollum became the man to serve the longest time on North Carolina death row until he was released due to DNA evidence proving his innocence in 2014. And yet Scalia had pointed to McCollum’s case as a prime reason for having the death penalty, calling a “quiet death by lethal injection” an “enviable” fate.
Meanwhile, Scalia’s passing is bound to create an epic political battle in this already highly politicized election season. Republicans are now certain to make the 2016 presidential election all about the Supreme Court, perhaps even threatening to block anyone President Obama nominates. It is no secret the president now has the potential to tip the balance of the Supreme Court from a conservative majority to a liberal majority.
Obama said he would nominate a successor “in due time,” while Senate Majority Leader Mitch McConnell (R-KY) believes the next president should make the call. “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said. “Therefore, this vacancy should not be filled until we have a new President.”
“The President can and should send the Senate a nominee right away,” said Senate Minority Leader Harry Reid (D-NV). “With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential Constitutional responsibilities.”
A number of successors to Scalia have been suggested, including Padmanabhan Srikanth Srinivasan, a judge on the United States Court of Appeals for the District of Columbia Circuit, and an Obama nominee. Further, Kamala Harris is the first African-Americans and the first Asian-American state attorney general of California. And Senator Cory Booker of New Jersey has also been mentioned as a possible pick for the nation’s high court.
As people remember the newly deceased Antonin Scalia and reflect on his life and career, there will be the temptation among Scalia’s supporters to rewrite history and give his legacy a makeover. Let’s keep it real and judge his record for what it was and resist the temptation to whitewash him.
Follow David A. Love on Twitter at @davidalove