President Obama Turns His Back, Correctly So, on Scalia’s Legacy

By Pam Martens and Russ Martens: February 18, 2016 

President Obama Walking in Cross Hall at the White House. (Official White House Photo by Pete Souza.)

President Obama Walking in Cross Hall at the White House. (Official White House Photo by Pete Souza.)

Last year, Ian Millhiser released his book, Injustices: The Supreme Court’s History of Comforting the Comforted and Afflicting the Afflicted. On the book jacket, Millhiser cogently summed up the cruelties inflicted on this nation as a result of lifetime appointments of bigoted and elitist gatekeepers on the U.S. Supreme Court:

“The justices of the Supreme Court have shaped a nation where children toiled in coal mines, where Americans could be forced into camps because of their race, and where a woman could be sterilized against her will by state law. The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy. Nor is the modern Court a vast improvement, with its incursions on voting rights and its willingness to place elections for sale.”

On the topic of race, the book explores how the U.S. ratified three constitutional amendments to provide equal rights to freed slaves while U.S. Supreme Court justices spent three decades attempting to dismantle the amendments. Millhiser correctly argues in the book that the U.S. Supreme Court has usurped the power that the constitution reserves for the people and their elected representatives, making a mockery of the concept of justice.

Just a little over two months ago, the late U.S. Supreme Court Justice Antonin Scalia made outrageously demeaning remarks against blacks during oral arguments in Fisher v. University of Texas. The case involved a white student, Abigail Fisher, who was denied admission to the University of Texas. Fisher sued the University over its consideration of race in its admissions.

Scalia stated the following while sitting on the bench during oral arguments: 

“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

Scalia then continued: “I’m just not impressed by the fact the University of Texas may have fewer [blacks]. Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”

Scalia was appropriately excoriated throughout the media with the New York Daily News summing up its reaction in large bold type on the front cover, calling Scalia a “Supreme Dope.”

Vanity Fair weighed in with this:

“To many, Supreme Court Justice Antonin Scalia is an eloquent version of S.N.L.’s [Saturday Night Live’s]Drunk Uncle: he takes a literal interpretation of everything, he’s prone to random insults during inappropriate times, and he thinks that things should be like the good old days (of 18th-century British common law). But even veteran SCOTUS watchers, who consider Scalia a highly nuanced constitutional expert, were perturbed when he suggested Wednesday that maybe black people benefit by attending ‘slower track’ schools, rather than elite universities under affirmative action.”

Back in 1992, Scalia also showed where he stood on the issue of hate speech against blacks. Scalia wrote the majority decision in R.A.V. v. City of St. Paul, Minnesota. Scalia had no trouble understanding what the case was about, writing:

“In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying.”

At the time of the cross-burning, St. Paul had a hate-speech ordinance that mandated the following:

“Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

Prior to the case arriving at the U.S. Supreme Court, a trial court had dismissed the charge. It was then heard by the State Supreme Court, which reversed the trial court’s decision on the basis that the ordinance served an overarching government interest in protecting the community against bias-motivated threats to public safety.

Given the nation’s history with slavery, lynching and segregation, a hate-speech ordinance hardly seems like government overreach.

Despite the clear public good underlying the ordinance, Scalia ruled that: “…the ordinance is facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

According to the White House, President Obama will skip Scalia’s funeral on Saturday, opting instead to pay his respects at the Supreme Court on Friday when Scalia will lie there in repose. By skipping the funeral, President Obama is, hopefully, sending a message that Scalia is out of the mainstream of what this nation needs on the highest court of law in the land.

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