Let's Not Twist It. My Differences with Scalia Were More Than "Political" [View all]

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Let's Not Twist It. My Differences with Scalia Were More Than "Political"
By Grizzard
Sunday Feb 14, 2016 · 1:22 AM EST



I deleted a large portion of this DK diary because it was so long. If you have time, feel free to follow the link and read it, as it's quite interesting. Otherwise, I found this section to be the most well-articulated critique of Scalia I have read since his death.

...That leads me to Antonin Scalia, the Supreme Court justice who died the day before Valentine’s Day in 2016. In the wake of Scalia’s death, opinions flowed over in my field. They flowed, too, from the average Joe not in my field. People who think like I do were just as gracious as my mentor had been to the little man with the teenage beard. They did that for two reasons. For one, they’re better than me. Perhaps most importantly, they did so because they had to.

Hilary Clinton said in a statement:

“My thoughts and prayers are with the family and friends of Justice Scalia as they mourn his sudden passing,” she said. “I did not hold Justice Scalia’s views, but he was a dedicated public servant who brought energy and passion to the bench.”

Bernie Sanders offered:

”While I differed with Justice Scalia’s views and jurisprudence, he was a brilliant, colorful and outspoken member of the Supreme Court.”

California Attorney General Kamala Harris wrote:

"In his three decades on the Supreme Court, Justice Scalia left a lasting impression on American jurisprudence. Even those of us who vigorously disagreed with his views recognized the power of his intellect."

Avowed death penalty opponent Sister Helen Prejean wrote:

“I'm very saddened to hear about the death of Supreme Court Justice Antonin Scalia. Although we didn't always agree, we were both Christians and were united on those essential principles. My thoughts and prayers are with Justice Scalia and his family.”

Even President Obama offered his thoughts on the value of Scalia’s “service” to the public. I have immense respect for the people that offered these opinions. I have even more respect for the pressures that made them contribute to needless hagiography rather than telling the truth. There’s no reason to make margaritas in celebration of Scalia’s death. Celebrated civil rights lawyer Clarence Darrow once said, “All men have an emotion to kill; when they strongly dislike some one they involuntarily wish he was dead. I have never killed any one, but I have read some obituary notices with great satisfaction.” His is my sentiment. I disagree strongly with anyone who frames differences with Scalia as “political” ones. It’s reductionist and revisionist, reducing important moral imperatives down to little more than questions that could be resolved in many ways. The problems with Scalia were bigger than that.

The Constitution of the United States is not a legal document. The people who interpret it are making legal distinctions off of the document, and the people who argue using it are making legal arguments based upon it. But it is not a legal document. It’s a moral document. It’s a founding principle that gives equal rights to all men, regardless of race, religion, class or station. It’s a document that understood how important it was to protect certain moral truths from the whims of politics. The Sixth Amendment exists because the founders recognized that a fair trial wasn’t something to be left to voters, who are prone to getting things very wrong a few times before they get things right. The Fifth Amendment is there because the right of non-incrimination shouldn’t be left to a guy who just discovered the criminal justice system when he stumbled upon Making a Murderer just before Christmas. That anyone believes they have “political” differences with Antonin Scalia is proof enough that his visage is worth truthful dissection.

I differed most with Scalia on the death penalty and the treatment of condemned people. Today, I’ve watched as fellow criminal defenders have posted pictures of the justice, and even as some lamented the harsh treatment of the justice. One broke down her opinions as a mere “disagreement” on ideological grounds. She acted as if she and Scalia agreed on the importance of educating our children, but disagreed on the proper way to do it. That’s a political disagreement. With Scalia, it’s much deeper than that.

I’m friends with Anthony Graves, the 12th man ever exonerated off of death row in Texas, the 138th exonerated nationally. He’s a black man who was sentenced to death for a mass child murder that he knew nothing about, only after prosecutors hid evidence, coerced witnesses, and manipulated the jury in the media. He was exonerated only after 18 years in custody. He suffered immensely, enduring solitary confinement, missing out on birthdays, Christmas mornings, and Easter egg hunts with his children. That he’s now out and using his voice to change the world does not make up for the wrong that was done to him. My friend petitioned the Supreme Court to take up his case after his appeals were denied in state court and the lower levels of the federal system. As in most death penalty cases, the Supreme Court declined to take up my friend’s case. Antonin Scalia left my friend to die. He didn’t care.

And why would he? Scalia once famously declared:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

For the uninitiated, the justice was saying, in effect, that the constitution is no barrier to executing a man who is actually innocent so long as that death sentence has been obtained in a nominally “legal” manner. He had other death penalty opinions that stood out, too. In 1994, Justice Harry Blackmun wrote an opinion questioning the constitutionality of the death penalty. Scalia responded by picking out what he perceived to be the worst of worst in death penalty cases. He picked Henry Lee McCollum, writing that McCollum’s case was a great example of why the death penalty was still necessary. He wrote:

“For example, the case of an 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

McCollum walked off of death row in 2015 after DNA evidence proved his innocence. So much for Scalia’s model case. You see, Scalia was prone to pronouncements that amounted to little more than demagoguery. His statements contributed to decades of operation of the machinery of death, which took lives in brutal state-sponsored murder.

Of course he didn’t stop at the death penalty. He dissented in Lawrence v. Texas, standing short in his belief that states should be allowed to jail gay people for having sex. His most recent headlines came when he suggested in an affirmative action case that black men might be better off at “less advanced schools,” where they might do better.

To cloak these moral distinctions as “political differences” is disingenuous. It’s the sort of stuff that will allow an Antonin Scalia monument to be erected somewhere in honor of his “passion” or “service” in the decades to come, as the younger public is duped into believing that his opinions were just the product of a different kind of legal reasoning. Since when did adjectives like “passionate” become a good thing without context? A man who is passionate about causing pain isn’t one to celebrate. In fact, it would have been better if he’d pursued his agenda with far less passion. The “service” of a man who dedicated his career to marginalizing the already marginalized is not a service we should honor. That man would have been better off choosing a high-dollar law firm, where he could have marshaled his considerable legal skills in favor of money before running himself into the ground.

Death does not wash away the stench of planned cruelty. Scalia holds more moral responsibility for his decisions than the average villain. His weren’t in-the-moment mistakes made under pressure. They were calculated judgments made after hours, days, and weeks of reflection. They were opinions written with the greatest of care.

To reduce these opinions, and these differences to the unmoving label of “political” does a disservice to the pain his decisions brought to actual human beings. Like the little man with the teenage beard, Scalia’s actions weren’t without a victim. When he wrote of the death penalty, he directly weighed on my friend Anthony and plenty of others, too. When he ruled in Lawrence, he laid the groundwork for much of the hate that’s made assaults on gay men and women a thing that we must tackle in 2016. If you call these political differences, as if they’re just different methods of solving a problem, you demonstrate a stunning lack of understanding that when Antonin Scalia spoke and wrote, his words carried unique power that often led to death, added to prejudice, and threatened to set America back a hundred years.

http://www.dailykos.com/stories/2016/2/13/1484955/-Let-s-Not-Twist-It-My-Differences-with-Scalia-Were-More-Than-Political