The dean of the modern conservative legal movement, Justice Antonin Scalia, is neither an intellectual nor a primitive. He is both. Scalia has fused the cerebral and the atavistic strains of conservatism in a manner that leaves one wondering if they were ever distinct at all. For decades Scalia has beguiled conservative law students with his abhorrence of compromise and the colorful, take-no-prisoners style of his opinions. More than any other contemporary jurist, he claims to abide by a host of scrupulous legal principles: strict fidelity to a statute’s text, adherence to the Constitution’s original meaning, respect for the nation’s federal structure of government. But notwithstanding these “neutral” principles and his habit of adorning his defense of them with intellectual flourishes, Scalia writes his opinions in boiling ink, mixing prodigious citations and vast learning with callous disregard for others and bursts of derision bordering on bigotry.
In a recent dissent that was joined by Justice Clarence Thomas, Scalia argued, astonishingly, that the Constitution does not forbid executing a demonstrably innocent man, so long as he has been given a fair trial first. (Justice John Paul Stevens, the senior liberal on the Court, responded in a concurring opinion that putting to death an innocent person would “be an atrocious violation of our Constitution.”) In his dissent in Lawrence v. Texas, from 2003, in which the Supreme Court struck down Texas’s anti-sodomy law, Scalia compared laws outlawing gay sex with those prohibiting bigamy, incest and bestiality. Having cleared his throat, Scalia then declared,
Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream” [and] that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal.
Scalia’s expression of base sentiments in fluid, vigorous prose is a strange blending of the high and the low–like a Catholic Mass in which the liturgy is led by a bearded hippie strumming a guitar and singing in Latin. Scalia attempted to qualify these ugly lines in the next paragraph of his dissent by insisting, “I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so.” Scalia seems genuinely baffled at the widespread incredulity that increasingly greets such protestations. His trademark busy italics might convey a spirit of apolitical rectitude, but they can’t conceal the striking overlap of his judicial opinions with socially conservative policy preferences.
If there is nothing more admirable than a judge forgoing personal beliefs to uphold legal principles, there is nothing more distasteful than a judge who claims to do so against strong evidence to the contrary. Scalia’s purportedly neutral, apolitical jurisprudence has moved him to vote against affirmative action, protection for abortion, rights for gays and lesbians, and equal treatment of women, and in favor of practically unfettered capital punishment, gun ownership and the open embrace of Christianity by the state. When questioned about this unbroken string of conservative decisions, Scalia is quick to highlight his votes striking down state and federal laws that banned flag burning, in Texas v. Johnson (1989) and United States v. Eichman (1990), stating that flag burning is repugnant to him personally (as it is to most conservatives) but is protected by the First Amendment. The cases have become his little black friends, inoculating him against any charge of legislating from the bench–the ultimate conservative heresy. But a more likely explanation than dutiful professionalism for his votes in the flag-burning cases is that free-speech principles do not animate him in the way social issues do. Just as principled judges are not always consistent, unprincipled judges are not always inconsistent.