We have these conversations, the ones in which we imagine the ways that bigotry will finally be eradicated, the laugh-to-keep-from-crying talks about racism, sexism, and other -isms that we just need to have sometimes. The best of them usually entail some sort of dramatic political conversion, like the Deep South suddenly deciding to vote Democratic. But many typically end with someone sighing and offering a solution that seems the most hopeless of all: "Maybe we just have to wait for all the bigots to die off."
This past Saturday, we got an opportunity to see what that looks like in real life, and to assess the shortcomings of waiting as a strategy. Antonin Scalia, the Supreme Court Justice and conservative standard-bearer, died during a Texas hunting trip at the age of 79. Not since former Alabama governor George Wallace have we lost such a vociferous and significant public opponent of social justice — and Wallace, who eschewed segregationist attitudes in his last days, was out of power when he died. I’m convinced Scalia’s passing is the most pivotal American political death since John F. Kennedy was murdered. There aren’t many people who have been in as powerful a position to dictate the very humanity of an American as he was -- not even presidents.
Scalia’s writing skill and humor is noted and celebrated by even some ideological opponents. (His friendship with liberal Justice Ruth Bader Ginsburg, especially, has been celebrated in the wake of his death.) But as many in politics and media continue to lionize a justice with indisputable influence on jurisprudence, there must be a thorough and immediate examination of the many more poisonous aspects of his legacy. Scalia’s privilege was not his lifetime appointment on the Court, nor whatever wealth he amassed during his 30 years on it. No, it was being able to benefit, by virtue of his public service, from the social convention of mourning that allows a bigot with frightening power to be remembered as "funny" and "brilliant." We cannot ignore, in the course of that celebration, those whose lives he subjugated and diminished in the interest of maintaining the very flawed version of America set forth by his fellow white and male forebears.
In 2013, Scalia told a Southern Methodist University audience that the U.S. Constitution is "dead, dead, dead!" What the Founders put on parchment, pretty much, is how Scalia saw America. Never mind how the reality of a nation has evolved and mutated since the 18th century along cultural, economic, and technological lines: We should live by rules thought up by a small group of land-owning white men nearly 80 years before slavery ended.
Scalia’s originalist approach, combined with the application of his strict Catholic beliefs to his rulings, manifested in staunch opposition to abortion and LGBT rights. Three years ago, he participated in the crippling of the Voting Rights Act of 1965. During the argument of that latter case, Scalia offered that the access to the ballot box secured by the VRA was a "perpetuation of racial entitlement." That’s light compared to some of the stuff he said about homosexuality, even before marriage equality became law. But his legal philosophy ran headlong not only into his own hypocrisy — he once told New Yorker writer Margaret Talbot, without explaining why, that he would have sided with the majority in the famous school desegregation case Brown v. Board of Education. Saying as much meant that Scalia would have violated his own hard-and-fast interpretation of the Constitution, presumably to make sure he was on the correct side of history. That’s the behavior of a politician, not a jurist. Even as he would continue advocating for legal discrimination in other cases, not even Scalia wanted to look like that bad of a guy.
A lot of folks who knew he was one, at least on the bench, felt the need to offer some brutal perspective in the wake of his death. I’m glad they did. Dave Holmes wrote movingly in Esquire about how Scalia not only issued discriminatory opinions, but also used his considerable intellect and writing ability to delight in doing so. So, I can understand why some folks are happy he’s gone. But while observers like Yale law professor Stephen L. Carter lament the grave-dancing of a few unidentified morons on the Internet, a few bilious tweets from so-called liberals doesn’t erase the zealous glee with which Scalia condemned large swaths of the American citizenry. It is similarly ludicrous to suggest that taking stock of this now is too soon. How does one prematurely politicize the death of someone whose life was so inherently political?
We also must take stock of the damage that could yet have been done had he lived. Scalia was less than a month away from being on the bench for a crucial abortion-access case, Whole Women’s Health v. Hellerstadt, a challenge to the 2013 Texas law that stands to close all but about 10 clinics in the state. In this case and the several others that are either pending or have yet to be heard before the court — including ones involving affirmative action, a teachers’ union, and again, voting rights — Scalia most assuredly would have been on the side seeking to limit pathways to equality, whether racial or economic. We can predict that because this is what modern conservatism would have dictated, and he adhered to it with few notable exceptions.
Right-wing thought didn’t shape Scalia so much as he helped shape it. His legal thinking and personal statements paved the way for much of the vitriolic, resentful brand of conservatism that we see currently spilling out haphazardly in the Republican presidential primary. His vision of a “dead” Constitution only served to keep an antiquated, monochromatic idea of America alive. And let’s not fool ourselves: Conservatism and Republicanism, while arguably sick in a number of ways, are both still quite healthy overall. In that respect, Scalia’s passing underscores that waiting for bigots to die is a fool’s errand. It doesn’t excuse us from the work that needs to be done, both organizationally and politically, to further equality.
More to the point, the lives and even the deaths of men like Scalia are a testament to the permanence of bigotry. His passing didn’t reverse any of his rulings, nor will it minimize his influence. But that isn’t a reason to get discouraged, unless you really do believe the fallacy that only old people are bigots and all we can do is wait for a bunch of funerals to push America toward equality. That’s not only hopeless; it’s lazy. If anything, everyone from activists to aspiring lawyers should get motivation from assessing the damage Scalia has done.
We should continue to offer sympathy to the Scalia family. They deserve that. That does not excuse responsible citizens, however, from remembering who this man really was and how he influenced forces seeking to roll back social progress. And people whose lives Scalia worked so hard to make harder should be allowed to say that we won’t miss him.