Top 5 Scalia Rulings that helped Progressives

By Juan Cole | (Informed Comment) | – –

Justice Antonin Scalia died in Texas on Saturday. IC sends condolences to his family. Scalia is widely recognized as having been a brilliant legal thinker and a fine and passionate prose stylist. He was the first Italian-American to serve on the Supreme Court. It is worth remembering at this time when immigrants are being dumped on that his father was a poor immigrant from Sicily who rose to become a professor of Romance Languages. I don’t imagine Justice Scalia and I would have agreed about very much. But perhaps his passing is an opportunity to point to a few things on which we, as Americans, did agree, because of our commitment to the Constitution, however different our interpretation of it might be in general.

1. Scalia took important stands to preserve the Fourth Amendment, which forbids unreasonable, warrantless searches by government of our personal effects and papers. Scalia wrote the majority opinion in the US v. Jones (2012), finding that if law enforcement sneaks under your car while it is parked in your driveway and attaches a GPS to it, that is a search under the Fourth Amendment. The court reversed the conviction of a drug dealer who had been so tracked without a warrant. Many in the police and FBI had argued that you are in public when you are driving around so it is not a violation of your privacy to track you as you go about your daily routine. In this case, the routine involved drug dealing. But civil libertarians replied that no one expects to be tracked 24/7 and that being subjected to such an intensive scrutiny for months at a time is in fact a form of search, for which a warrant should be obtained. Scalia here pushed back Big Brother.

2. In Kyllo v. United States in 2001, Scalia wrote the majority opinion that the government can’t use infrared imaging to look inside your home from the street without a warrant.

3. Scalia concurred in a crucial ruling by the court that the Environmental Protection Agency has the right to regulate carbon dioxide emissions. SCOTUS found in the EPA’s favor 7-2. President Obama is using this ruling to essentially close down most old, polluting coal plants. As these are replaced by cleaner natural gas or in many cases by wind and solar, half a billion tons a year of CO2 emissions could be avoided this way. That is a pretty powerful environmental legacy, to which Scalia contributed.

4. In EEOC v. Abercrombie & Fitch Stores, Scalia last summer wrote the majority decision. The court found that the stores had to offer Muslim-American Samantha Elauf a faith accommodation even if she did not ask for one. A&F had declined to hire her when she interviewed for a sales job wearing her Muslim headcovering or hijab because the firm said it had a policy against employees wearing hats. Everyone recognizes that if she had explicitly stated that she wore hijab for religious reasons the company could not have discriminated against her. But she didn’t say anything about her faith. Scalia and 7 colleagues found that the store was in error; they had to honor her conscience whether she asked them to or not. While some critics saw this ruling as a dangerous exaltation of religion over other kinds of rights, I would argue that accommodating the conscience of citizens is a progressive principle. It is the same notion that underlies allowing conscientious objectors to opt out of war-fighting, which I believe is also progressive. For the most part, putting personal values that do not harm others above property rights and other regimenting structures is progressive.

5. Scalia also joined the rest of the court in deciding that a jailed Salafi Muslim had a right to grow a beard. Prison officials argued that a beard might make it difficult to identify the prisoner, and that he might be able to hide contraband in it. In fact, he offered only to grow a short beard. Scalia, a conservative Catholic, actually castigated him. Religious commands are categorical, he said. The Salafi had to grow a big bushy beard if that is what he thought God commanded. (Most Muslims don’t agree with the Salafi interpretation and the vast majority of Muslim men don’t wear beards). I was amused by Scalia scolding the Salafi for being willing to compromise. The reason a progressive can approve of this ruling is that a beard does not affect anyone else, and victimless practices should be allowed in a liberal society. The Justices found that the prison officials could surely find other ways to make sure the Salafi prisoner could be recognized and to prevent him from carrying around a hacksaw in his beard. The conservatives on the court admittedly cited the Hobby Lobby decision here, but Sotomayor and Ginsburg dissented from that reference, the latter precisely because growing a beard only affects the individual, not anyone else. In general, increasing prisoners’ rights with regard to their own persons is progressive.

Related video:

“Supreme Court rules Abercrombie and Fitch discriminated against Muslim woman in hijab – TomoNews”

26 Responses

  1. Justice Scalia’s judicial integrity is perhaps best known for his being the swing vote in two separate decisions striking down state and – later – federal statutes making it a criminal offense to desecrate an American flag. The initial (state law conviction)invalidation decision was derided by political conservatives and was opposed by President George H. W. Bush who signed into law the federal legislation that the U.S. Supreme Court would subsequently strike down – also on First Amendment grounds. Scalia in a later interview expressed his distaste for the conduct of the defendants, but conceded that the Free Speech Clause of the First Amendment protected the conduct of the defendants.

    He would also later join the majority in upholding a U.S. Court of Appeals decision reversing a multimillion-dollar verdict against the Westboro Baptist Church and members of the Phelps family by the father of a U.S. Marine Corps soldier who died in Iraq. The Westboro church members protested the military funeral which Scalia felt was protected activity under the First Amendment.

  2. OK, maybe I don’t HAVE to hate Scalia and his accomplices in turning the Supreme Court into a highly -politiczed and too-often-severely-retrograde institution in the American polity, perhaps as you point out, among the likes of Thomas, Alito, Roberts and Kennedy, he was the most human. humane and the most willing to follow his principles even when they went against his political allies.

    But if this crew manages to stymie just the beginning of our cooperation with the Paris climate agreement, and tries to deliver a sweeping ruling against Presidential initiative, and if all this crap the right-wing five on the Supreme Court have been engaged in, is seen in ten or twenty years as key points in the climate change disaster, I think I will still hate him.

    Things are very different this year, and I am going to have to re-write my big political article to account for the Trump, Sanders and other revolutionary phenomena. such as the oil price slump. I’m willing to go along with whichever Dem can win the primary, read my old articles, I was twenty years ahead of Bernie, so I can’t deny his revolution if it really happens, but we’ve got to WIN the Presidency with whatever D against whatever R, to save the planet and give our grandchildren a fighting chance at a decent life. And all you folks who support Bernie now will also have to keep coming out in the streets for him, if he is the nominee, for the next 5 years at least.

    • Kennedy is the most humane of those five.

      Scalia the most willing to *occasionally* follow his principles? Maybe, but he usually ignored his own principles, so that’s not saying much.

      You want principled, look at David Souter or Stephen Breyer, both of whom earned my massive, massive respect.
      For what it’s worth, I’m voting Bernie *strictly* on electability grounds. Hillary’s a terrible campaigner with no coattails, and Bernie’s consistently better in head-to-heads against every Republican than Hillary is.

  3. While the acts of a right wing enemy of the people will at times coincide with their interests, it is not helpful to make points in his favor. Those who study the federal judiciary know that the Supreme Court is truly the established enemy of the Constitution and of democracy, and seems otherwise only when the rich cannot get what they want otherwise. The oligarchy appointed them, and cares not the least for democracy or the people. The oligarchy cares only about the rich, and will send us all to hell for a nickel in their interest.
    The people need more than these coincidences, more than scraps from the table of the bully-boy tyrants who have overthrown democracy. The federal judiciary are nothing but minions of the right wing revolution that has overthrown democracy, very truly traitors wrapped in the flag, abusing the public office entrusted to them to the maximum of the ability, and should be sent to the wall at the earliest opportunity.
    Let us celebrate the death of Scalia. Let there be an eternal curse upon all his kind.

    • For an interesting example of utter dishonesty by the Supreme Court, in a minority opinion by Scalia opposing the ACA, see today’s Consortium article by Robert Parry at link to

      It shows how Scalia quoted Hamilton in Federalist Paper No. 33 claiming that Hamilton supported Scalia’s opposition to federal regulation under the Commerce Clause, when in fact Hamilton was savagely ridiculing those who were fearmongering against the clause. I see this kind of deliberate cynical reversal of meanings of quotations and precedent cases almost every time I read a lawyer argument against civil rights. They are truly nauseating hypocrites at every opportunity, and you will see this shown of Scalia.

    • I find it interesting how people don’t want to speak poorly of the dead, as if their death has turned an a-hole into an angel. He should be recognized for what he was and any good decisions he made were pure happenstance, not due to any positives of his character or ideology. He was a tool of the oligarchs and an unsympathetic ideologue who cared not one whit for the average person or for humanity as a whole. Thanks for bringing a clear headed and realistic appraisal of the man and what he has done.

  4. Steven Zekowski

    Thanks. Its too easy to see things as B&W these days. Its important to remember that the truth is otherwise – nuanced, complex

    • I agree completely that the truth is nuanced. And the mechanism the court has used to address nuance is simple: eight judges ponder in terms of black and white, One judge, O’Connor, then Kennedy, handle(d) nuance, aka the “swing” vote.

      Scalia was a smart, charming, witty, boat anchor. He saw nuance as a lazy reluctance to read 240 year old tea leaves.

    • Yes, truth is often nuanced. But for the right wing the nuances and the principles are just bribes of different kinds from different sources, direct, indirect, or hypothetical. They have no principle of justice for all, but only deals and hits for their own kind. Their idea of nuance is non sequitur, scams, collusions, and outright lies, and they accept this as rightful practice in law and public office. No nuance there, it is treason.

  5. Conservatives praising Scalia want him replaced by someone who will be a strict interpreter of the original constitution that came out of Philadelphia in 1781 despite the fact it had to be amended ten times within ten years to include the Bill of Rights. Since the original it has been amended a total of 27 times. So much for the sacredness of what the “founding fathers” thought.

    • Agreed, the Constitution is not sacred, and still has significant flaws, particularly the lack of safeguards against economic tyranny and economic control of mass media and elections, and the lack of functioning checks and balances. There are no checks or balances upon the judiciary at all (it was thought there would only be 12 of them versus 900 now, and that they would have to behave well), and the executive has taken most warmaking power from Congress, and has established a dark state that must be abolished.

      Incidentally, I do not give them the distinction “conservative” because, as you state, they reject the Bill of Rights and its application to states by later amendments. In fact they are mere tyrants who aspire to succeed by business scams and deals, and arrogate themselves special rights. Because the Constitution is very liberal in rejecting aristocracy, one must be a liberal to be conservative in the US, so I call those self-styled “conservatives” right wing revolutionaries and traitors. I have often watched them completely ignore all constitutional issues and decide cases based solely upon the political affiliation or wealth of the parties, or some other right-wing prejudice. They conserve nothing but their personal wealth and power, and the term “conservative” lends them dignity when in fact they should be hung.

    • Actually, he wasn’t. Bush v. Gore would have been considered a retrograde, out of line, biased ruling by 1800.

      Progressive for the 1700s, I guess.

  6. Regarding “Scalia, I am reminded of the old saying that even a blind squirrel will occasionally find a nut. Wow, out of hundreds of cases Scalia managed to rule correctly a few times. He was a legal troglodyte. When the issue of waterboarding was hot, someone asked Scalia if torture didn’t violate the 8th Amendment to the Constitution which prohibits cruel and unusual punishment. Scalia said that it didn’t because torture wasn’t punishment. Say what? And this is a brilliant legal mind? He was nothing more than a mouthpiece for the extreme right wing in American politics and he will not be missed.

  7. Professor is pointing out the “positive”‘ s of Scalia. That should be said. But since the news of his passing broke out yesterday, all of the news media have been praising him as if an angel has died. No mention of what this right wing court has done in the last couple of decades. Just think of Citizens United and the danger they have posed to restricting abortion rights. The right wing court’s main agenda has been gradually overturning the SCOTUS’s achievements of 60’s and 70’s and the fruits of people’s struggles of 60’s. And the chief ideologue of this trend has been Scalia. Incidentally, we have had too many strict Catholics in Supreme Court. Time to nominate a Hindu, or Moslem to represent diversity of our society.

  8. May he rest in peace. There is an empty seat that few are worthy to fill. It is very easy to write comments from the sidelines but he was one in the fray. Well done IC to point out the breadth and not the narrowness of a person at his death.

  9. Mr. Cole, as a former law student who has read a couple hundred opinions of his, your commentary is misleading. Yes, he believed in strict textualism, even when it went against his conservative beliefs, and in that regard he was consistent. However his rulings on torture were disturbing. Had he been on the bench during Korematsu I fear he would have been with the majority. His ideas on affirmative action as well.
    Further, in the case of hijabi Samantha Elauf, let us not pretend that any favors were done. The Constitution clearly states “free exercise of religion,” and for that, we have only the Constitution to thank.

    That being said, he was a great writer and may he rest in peace.

  10. I personally don’t agree with the A&F decision, and I’m a liberal. A&F is clearly going for a certain look and they should be able to not hire a person who will not “fit” that look .Just like you probably won’t hire a size 0 model if you’re in the business of plus-size clothing, or to make another analogy if I’m a restaurant owner who serves food that is not halal/kosher then perhaps an Orthodox Jew/Muslim should seek work elsewhere.

  11. You did pretty damn well at finding something positive to say about him.

    Unfortunately, Bush v. Gore proved that he was an absolute crook who ruled entirely based on who the parties to the case were. And he’s done that in lots of other cases too, contradicting his own previous opinions to let the favored side win.

    He should never ever have been made a judge. Lawyer, OK, but judge, never. He lacked the temperment.

  12. Scalia deserves to be beleaguered in perpetuity by the souls of the victims of two of his major crimes: Bush v Gore and Citizens United. Millions of innocent adults and children in the middle east alone and the toll keeps rising.
    In comparison the rest is trivial.

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