Powerful Illusions: A Critical Look at the Legacy of Supreme Court Justice Antonin Scalia


Editor’s Note: Tens of millions of Americans would have been much better off had Antonin Scalia never been appointed to the Supreme Court.

Deceased Supreme Court Justice Antonin Scalia. Source: Flickr (Shawn Calhoun)

Scalia played a prominent role in introducing extremist and blatantly racist ideas, undermined democracy not only by helping overcome the majority vote for Al Gore by finding justification for giving the presidency to George W. Bush but also by overturning the decisions of democratic elected Congressional mandates restricting the role of money in politics (the infamous Citizens’ United decision) and dismantling key sections of the Voting Rights legislation that had been the most concrete accomplishment of the Civil Rights movement (thereby allowing southern states to rush in, as they have done, to create significant obstacles to voting for many people of color). His impact on our society was overwhelmingly (though not exclusively) hurtful to the poor and the powerless.
Just last week he helped paralyze President Obama’s rather weak efforts to put some controls on environmentally destructive emissions.The pouring out of pious praise of this man in the ethically lamestream media is sickening–and a tribute to the phoniness that goes for “civility” in the public sphere–practiced by liberals but rarely adhered to by the politically conservative elements of our society who rushed in to proclaim that they would not allow Obama to appoint a replacement even before Scalia was to be buried.
It is only in the cyberspace online world that anybody seems willing to speak their real feelings about the powerful whose control of the media almost always guarantees that the henchmen of the rich and powerful in public office and in the corporate offices always get honored for the dirty work they do.
All this brings to mind Shakespeare’s words put in the mouth of Mark Antony who is praising the just assassinated Julius Caesar: “The good that men do oft is interred in their bones, the evil lives after them.” Yes, the evil that this Supreme Court Justice championed will live after him until someone has the ability to appoint justices to the highest court who overturn the destructive precedents Scalia wove into the fabric of American legal decision making.
Don’t expect that from President Obama’s likely appointee, who will likely be a centrist moderate rather than someone distinguished for his or her commitment to human rights, environmental sanity, and economic justice for all (though the Right, when in power, has no hesitation to go for their own values, rather than trying to appease the liberals–which is one reason why they’ve grown more powerful, because they at least will fight for what they believe in while liberals too often appear to the rest of society as weak and liberal and about their liberalism, so who can count on them when things get tough?)
No wonder why so many ethically sensitive people hate the whole realm of politics and public discourse!
Or course, I certainly never wished him dead. I wish his family well and send them condolences. But I did wish that Justice Scalia would have retired much sooner (it might have been good for his health, certainly would have been good for the health of the country).
It is wonderful to read the sane words of Georgetown Law School professor Gary Peller (whose articles in Tikkun have been among our most creative thought pieces) that he sent out in response to a statement by the Georgetown Law School’s dean and public relations department. Please read the statement to which he is referring first, then his statement below.
–Rabbi Michael Lerner
The official Georgetown Law statement:
February 13, 2016 – Georgetown Law mourns the loss of U.S. Supreme Court Justice Antonin Scalia (C’57), who died in Texas at the age of 79. “Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,” said Dean William M. Treanor in a statement.
“Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few Justices have had such influence on the way in which the law is understood. On a personal level, I am deeply grateful for his remarkably generous involvement with our community, including his frequent appearances in classes and his memorable lecture to our first year students this past November.”
Georgetown University Law School Professor Gary Peller’s response:
Dean Treanor and Colleagues:
I was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.
I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the “community” should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the “culture wars” he often invoked. In my mind, he was not a “giant” in any good sense.
It is tricky knowing what to say when a public figure like Scalia, or the late Robert Byrd, or other voices of intolerance, meet their death. But as an academic institution, I believe that we should be wary of contributing to the mystification of people because of the lofty official positions they achieved. I don’t want to teach our students to hold someone like Scalia in reverence because he’s a “Supreme Court Justice.” Our proximity to official Washington provides an opportunity to see many public officials close-up, and to learn that there is nothing special that titles bestow–even a Supreme Court Justice can be a bigot, and there is no reason to be intimidated by the purported “brilliance” that others describe because, when you have a chance to see and hear such people close-up, the empowering effect is often, as it should be, demystification. (I was happy to meet Warren Burger as a law student for this very reason.) We should never teach our students to be obsequious to those with power.
The “Georgetown Community” could mean many things. In one sense, it is simply a legally constituted set of formal relations, and in that sense perhaps “the Dean,” duly appointed by “the President,” speaks for that “institution” of formal legal relations.
But there is also a lived community that we inhabit, within the interstices of the formal and contractually defined roles, a community that exists in our relations with each other and with our co-workers and our students, a community that is constituted in our hallways and class rooms and lunch rooms, and in our affection for and commitment to one another, and, for many of us, a vision of how we could all be together in the law school, disagreeing often but always trying to be sensitive and empathic to all members of our community.
That is the “Georgetown Community” that I feel a part of, a lived community of tolerance, affection, and care that so many have built for so long here.That “community” would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obsequiousness.
Sometimes the two senses of community might merge–the formal, legal institution might be so at one with the lived community that its legitimacy to speak for the “community” flows organically. But that is not our situation.
Gary Peller
Gary Peller is professor of law at the Georgetown University Law Center. With Peter Gabel, he was an active organizer of the Critical Legal Studies movement. He is also a prominent writer in the Critical Race Theory movement.


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13 thoughts on “Powerful Illusions: A Critical Look at the Legacy of Supreme Court Justice Antonin Scalia

  1. Regarding Scalia’s judicial philosophy, it’s hard to see “evil” in the realization that issues the Constitution does not address (abortion and homosexuality, for example) should be left to the people to decide democratically. Indeed, when activist justices fail to grasp that concept, their decisions only serve to bitterly divide the nation – and turn the Supreme Court into little more than a political football.
    For upholding the democratic soul of America, for standing four-square against the temptations of oligarchic rule from the bench, we owe an immense debt to Justice Scalia.
    I didn’t know the man personally, but surely he would have been embarrassed by the likes of Lerner and Peller, if what they’ve written here is representative of them more fully.

    • What absolute nonsense. The whole point of having a Supreme Court is to have it as a balance against overreach (or underreach) of the other two branches. To pretend, as Scalia did (but only when it suited him) that there is some Platonic ideal of constitutional reading is to be willfully and disingenuously blind. I do not think that “evil” is too strong a word for the damage and death that man aided through the real world consequences of decisions he helped construct and implement. He apparently was an extremely charming individual; he was a dreadful Supreme Court Justice.

    • If you’re smart enough to get into Georgetown or Harvard, you should know the dangers of jumping out of the pot into the fire. Just saying.

  2. Peller and Lerner- certainly not ‘fair and balanced’. I shudder to think that they are teaching the next crop of Georgetown law graduates to let loose on an unsuspecting society.. Our Supreme Court needs to represent all our citizenry not just the select group Peller and Lerner recommend. Their words make them look like ‘little’ men.

    • A Supreme Court with more conservatives than liberals hardly represents “all our citizenry” any more than decisions favoring the government over the individual, or the powerful over the weak. Yet, these are the decisions we have seen time and again from the Rehnquist and Roberts Courts. For the last three decades, we have seen stare decisis thrown out the window again and again.
      If the Rehnquist and Roberts Courts truly represented all our citizenry, why such controversy over Bush v. Gore? Or Citizens United? Or Shelby County? Or Heller?

  3. Ah, liberal, progressive, elite smugness that says you think like I think or you are lower than snake shit in a wagon wheel. Hidden in lofty words, this is nothing but bullying, giving his two cents worth over a man he can’t hold a candle to. Stop hiding at the front of the class where people have to pay to hear your opinions. Go into private practice and stop ruining young minds.

    • Ah, conservative ad hominism. Why don’t you instead address just what you disagree with in Mr. Peller’s letter instead of attacking him for laying out what a truly awful justice Mr. Scalia was.

    • I’m sorry Ms. Dunlap, but where is the bullying? Have you read any of Justice Scalia’s decisions, and thus have formed your own original opinions of his arguments that you wish to share with us “smug liberals”?
      I have read many of his decisions, and he was indeed happy to deviate from strict interpretation when it suited his ends. I found his opinions often facile, not brilliant.

  4. Peller is a left wing whiner. Too bad u don’t agree with justice Scalia. He was, and even in death remains, light years ahead of u. Go back to your lecturing and keep whining.

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