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Scalia is No Civil Libertarian

By Wendy Kaminer,

        Is the animosity of civil libertarians toward Supreme Court justice Antonin Scalia, “misguided,” as Harvey suggests below?  Not hardly; and it is not simply based on Scalia’s opposition to gay rights and reproductive choice, as Harvey implies.  While I agree that Scalia's recent remarks about torture are not grounds for impeachment, I don't suspect him of being a closet civil libertarian.  Scalia has, at very best, a mixed record on free speech, criminal justice, religious liberty, and the rights of non-citizens.

        Consider these cases: 

        In Hamd
an v Rumsfield, Scalia endorsed the denial of habeas rights to Guantanamo detainees. (He has shown more consideration for the rights of American citizens on American soil, ruling in Hamdi v Rumsfield that a citizen held for more than two years in a navy brig had a right either to be charged and tried in a criminal court or set free – unless Congress suspends the writ of habeas corpus; it had not done so in this case.)

        In Kansas v Marsh, Scalia joined the majority in reversing a decision by the Kansas Supreme Court that invalidated the state’s death penalty statute because it mandated imposition of a death sentence when aggravating and mitigating factors were found to be “in equipose.”   Not content simply to join Justice Thomas’s majority opinion, Scalia went to the trouble of filing a concurrence defending the death penalty, summarily dismissing concerns about convicting and executing the innocent.  Never mind that the Court has refused to consider evidence of racial bias in capital sentencing (in McClesky v Kemp,) set the bar low for competent counsel in capital cases (in Strickland v Washington,) and held that “A claim of ‘actual innocence’ is not itself a constitutional claim,” (in Herrara v Collins.) Scalia praised the “sensitivity of the criminal justice system to the due process rights of defendants sentenced to death” and asserted that the possibility of mistakes “has been reduced to an insignificant minimum.” 

        In McCreary v ACLU, Scalia dissented from a ruling invalidating an official display of the Ten Commandments, arguing that the Constitution does not mandate government neutrality toward religion.  The First Amendment “permits (the) disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists,” he declared.

        In Morse v Frederick, Scalia joined the majority in greatly restricting the speech rights of high school students.  Morse involved the suspension of a student for unfurling a banner reading, "Bong Hits 4 Jesus" at an off campus, school sponsored event celebrating the Olympic torch relay.  He was suspended for violating the school’s anti-drug policy – merely by holding this nonsensical sign.

        Finally, in Romer v Evans, Scalia did not just make clear his opposition to gay rights, voting to uphold a state constitutional amendment that invalidated laws prohibiting discrimination based on sexual orientation.  He made clear his contempt for gay people, effectively comparing homosexuality to murder: “I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could even exhibit ‘animus’ toward such conduct,” Scalia sneered.  “Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct…”

        Surely this is not the perspective, or the record, of a civil libertarian.


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