Justice Antonin Scalia is an unbelievably retrograde thinker. He constantly dissents angrily in cases dealing with gay rights.
Consider two cases:
• In Lawrence v. Texas, the Supreme Court invalidated a Texas statute banning homosexual relations (2003): “Today’s opinion is the product of a court that has signed on to the homosexual agenda,” Scalia wrote. “It eliminates the moral opprobrium traditionally attached to homosexual conduct. Many Americans do not want homosexuals in their businesses, as scoutmasters and as teachers. The court is oblivious to the fact that homosexuals are not in the mainstream.”
• Obergefelle v. Hodges (2015): The Supreme Court validated gay marriage. “Scalia vented even more than his usual anger in the Hodges decision,” 7th Circuit District Judge Richard Posner observed in an opinion piece in the New York Times.
“There is no principled basis for distinguishing child molesters from homosexuals since both are minorities,” Scalia told Georgetown law students. “Moreover, the protection of minorities should be the responsibility of legislatures, not courts.”
He ended on a note of doom: “Obergefelle marks the end of democracy in the United States. It means the people are subordinate to a Supreme Court committee of nine unelected lawyers.”
Scalia wrote in Obergefelle that the Supreme Court should get out of the business of deciding the constitutionality of state statutes or laws of Congress. As he told students at Rhodes College in Memphis, Tenn., the Obergefelle decision means the Supreme Court can do whatever it wants.
Whew! It is hard to know where to begin a rebuttal to Scalia’s tirade.
Despite the fact that the Supreme Court often makes wrong decisions, it is essential to rule on the constitutionality of legislation. Although the legislatures and Congress often pass bad statutes and laws, a legal body is needed to determine their constitutionality.
A good example is a recent ruling of the U.S. Court of Appeals for the Ninth Circuit that was the basis of a front-page story by the Sparks Tribune. The court ruled that the Tucson, Ariz., city council election system is constitutionally flawed because in primaries voters choose nominees by wards but in general elections the entire population of Tucson can vote.
This is hardly an earthshaking case. But the circuit court was right to call the system a violation of the Equal Protection Clause of the 14th Amendment. (Sparks, as well as Reno, has the same unconstitutional system.)
Clearly, the Supreme Court must decide the constitutionality of such legal disputes.
During a recent argument on an affirmative-action case before the Supreme Court, Scalia declared that “some black students would benefit from being at a lower-track school” instead of the Texas flagship university in Austin. He suggested that some of those students “are being pushed ahead in classes too fast for them.”
U.S. Sen. Harry Reid of Nevada promptly denounced Scalia’s racist rhetoric.
“The idea that African-American students are intellectually inferior to other students is despicable,” Reid said. “It’s a throwback to a time that America left behind half a century ago.
“That Justice Scalia could raise such an uninformed idea shows just how out of touch he is with the values of this nation today. An African-American student has the same potential to succeed in an academic environment as any other student.”
Scalia would do America a favor by resigning from a role he is totally unfit for.
Jake Highton is an emeritus journalism professor at the University of Nevada, Reno. (jake@unr.edu)
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