Antonin Scalia: The Most Misunderstood Justice Of All Time?


Amidst the impending Supreme Court decisions, it would be worthy to know a little bit about one of the most beloved and hated Justices out there, Antonin Scalia. Just on the horizon, we have some nation-changing decisions ahead of us. The court will soon rule on: the Voters Rights Act, Defense of Marriage Act, and Proposition 8. 

Justice Scalia is commonly misunderstood as being someone who opposes activities championed by the political left. Progressives have labeled him anti-abortion, when it looks like the reality is that he just does not agree the claim that the action is a constitutionally protected right. Much of his ideology and interpretations of the Constitution come his belief in “originalism.”

This ideology expresses the belief that one ought to interpret the Constitution as it was, when it was written. Understanding this philosophy can shed light into the rationale behind many of his opinions. He told 60 Minutes in 2008 that he has no patience for what he describes as “activist judges” who change the Constitution’s interpretation with changing values.

If you were to look at political commentary about Supreme Court Justice Antonin Scalia, you would most definitely be confused. Some accuse him of being an authoritarian, while others praise his respect for the Constitution and individual rights. The only thing both sides seem to agree on is his entertaining opinions. Regardless of your opinion of his opinions, I think that we can all agree that the man is very intelligent.

His writing is top-notch and commonly includes little tidbits of comic relief. Additionally, his closest friend on the Court is his ideological opponent, Ruth Bader Ginsberg, in which the two enjoy opera together and both are true intellectuals.

Progressives hate him. Libertarians partially like him. Conservatives usually love him. He certainly is not the most predictable. He has sided with liberals of some very big cases; the famous flag burning case and Maryland v. King (DNA swab case), among others. The progressive distaste for him stems from his lack of enthusiasm for abortion rights and also his inflammatory comments about homosexuality.

He has developed a reputation of siding with law enforcement but then also going against them, most recently in Maryland v. King, where he expressed the dissenting opinion against forced DNA swabs. Yet in other instances, he sided against the civil libertarian position in the name of the war on drugs. Regardless, he stands quite firmly behind the legal requirement for probable cause before conducting a search, as seen his in cases involving infrared surveillance of homes or the GPS tracking of cars. 

As the “conservative anchor,” Scalia has been criticized for his opposition to abortion on the basis that the action is a constitutional right. In his dissenting opinion of Planned Parenthood v. Casey Justice Scalia states,

“The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

In other words, Scalia opposes the abortion argument not on the grounds of abortion itself but rather because he does not see that it is a constitutional right. Last week, Scalia expressed his belief that the Supreme Court is not qualified to judge the morality of certain issues, but rather it is the communities’ job to do so.

With highly visible controversial cases on the docket, knowing a bit about the controversial Justice Scalia will certainly prove helpful in understanding his constitutional hermeneutic. Approaching the issues with an understanding of Scalia’s perspective will help one to make sense of the judgments that he issues. They don’t always fall on the predictable side of the aisle.

Oversimplification has led to a gross misunderstanding of the Justice’s positions. Believe it or not, it is possible to agree with a specific side in an argument, not on the grounds that they are morally correct, but rather on the grounds that their legal argument is solid. With the upcoming cases, be sure to keep in mind that Scalia’s rationale behind his opinions stems from his adherence to a theory of originalism and not on his moral prescriptions for society.