Oh Scalia, what did you say this time?

Supreme Court Justice Antonin Scalia’s comments during oral arguments1 in Fisher v University of Texas at Austin generated controversy both in news and social media. Some are suggesting that Scalia is revealing himself to be a bigot

Scalia has had these sorts of accusations pointed at him several times, and I’ve found it instructive to seek out the court opinions or arguments from which the comments come. For the most part, the accusations have been completely groundless. For example, he was accused of believing that the world was created only 5,000 years ago after making an address to his granddaughter’s high school commencement in which he said that humanity had been around «at least some 5,000 years or so». Perhaps he is a young-earth creationist, but this comment by itself is not particularly damning. It was part of his larger point, that the problems of modern life are largely not modern problems, but those that have plagued people throughout history. Was he referring to recorded history beginning some 3400 to 6000 years ago? It might be a clue to his beliefs about the origins of human life, but it’s pretty weak evidence.

These claims were further bolstered based on the following from his dissent in Edwards v Aguillard, a case from 1996:2

The body of scientific evidence supporting creation science is as strong as that supporting evolution. In fact, it may be stronger…. The evidence for evolution is far less compelling than we have been led to believe. Evolution is not a scientific “fact,” since it cannot actually be observed in a laboratory. Rather, evolution is merely a scientific theory or “guess.”… It is a very bad guess at that. The scientific problems with evolution are so serious that it could accurately be termed a “myth.”…

Creation science is educationally valuable…

A quick look at the transcript shows these statements to be part of a series of numbered paragraphs littered with references to other documents preceded by these words:

Senator Keith and his witnesses testified essentially as set forth in the following numbered paragraphs:

In other words, Scalia never made those claims. He quoted the claims made by the author of the Louisiana law the case was considering. Scalia argued that no matter how wrong the members of the Court felt Senator Keith’s views were, that the members of the Louisiana Legislature had at passed the law based on at least partially secular rather than exclusively religious grounds, and that it did not show a complete lack of secular purpose. His dissent — at least as it was written — was about the Establishment Clause, not about the validity of so-called creation science.

Looking a couple of paragraphs earlier, it is made explicitly clear:

Before summarizing the testimony of Senator Keith and his supporters, I wish to make clear that I by no means intend to endorse its accuracy. But my views (and the views of this Court) about creation science and evolution are (or should be) beside the point.

It ought be noted that Michael Stone amended his 5 June 2015 post with a parenthetical note that «diligent readers have complained that the above quote […] is unfairly attributed» and that «The readers’ complaints have merit.» This falls far short of saying the complaints are correct, or that the claim was a lie. Indeed, Stone concludes «the larger point still stands: Scalia was wrong to defend the teaching of creationism». If Stone was admitting that his attribution wasn’t honest3 he had presented nothing which supported his «larger point.» Claiming it «still stands» as he does requires accepting his assertion alone.

Justice Scalia no doubt occupies one of the conservative seats on the Supreme Court so it ought not be a surprise that he is the target of misrepresentations from dishonest people on the left. Having used the phrase «dishonest people on the left» I have to make something clear which is too important to put in a footnote: I do not mean that people on the left are dishonest. There are dishonest people speaking from every corner of the political realm. Many are making images which get shared around social media by people who don’t intend to spread misinformation but who assume that the claims are true without checking facts. But liberals generally don’t lie to make liberals look bad, nor do conservatives usually lie to make conservatives look bad. And liberals don’t tend to re-share anti-liberal social media memes just as conservatives don’t tend to re-share anti-conservative social media memes.

Scalia’s comments more recent comments were also prefaced with a disclaimer that he was restating someone else’s beliefs, but it’s a bit stickier:

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.

«There are those who contend» does appear to brush away the idea that it is not Justice Scalia’s contention, but that is a far weaker argument than the one against the claims that his citation in Edwards v Aguillard was his own belief. Here he is clearly looking for a response to the idea. Even if he is asking as a hypothetical, he’s asking for an evaluation of the contention, not simply illustrating that the contention exists.

More troubling is the inference which can be drawn from these words: that African-Americans should go to lesser schools which are more suited to them. Then there is his follow-up statement that «Maybe [University of Texas] ought to have fewer [African-American students].»4 It’s hard to say that it doesn’t look like he’s saying that African-American students are inferior and that maybe they shouldn’t get in to good schools.

If that’s what he meant to say, it’s certainly offensive. It’s an easy inference to make, and it’s perfectly reasonable to challenge Scalia on this. At best, his statement was poorly-phrased. These comments were not taken out of context.

Nonetheless, these weren’t part of a prepared statement or a written opinion or dissent. It’s easy to say something extemporaneously which doesn’t come out right. Counsel Gregory Garre’s time was up5 after he stated that the question had been answered by a case in precedent6 which was not being challenged. Scalia couldn’t follow up, giving us no more insight into his words. Scalia ought be given the benefit of the doubt at least as far as considering whether there might be another interpretation.

To that end, suppose he may have better phrased what he said, «there are those who contend that it does not benefit the individuals who don’t meet the race-blind standards but who are granted admission based on standards that take race into account…». This would be a valid objection to raise, if only to refute it. It’s a common argument that you’re not doing any favors by admitting unqualified students in just to satisfy a quota, and though easily refuted goes to the heart of the plaintiff’s case: that she was wronged by giving preference to students in minority communities.7

Such an interpretation is plausible, though it makes an unwarranted assumption about the University of Texas at Austin’s admission policy.8 Certainly it’s less loathsome than the idea that a sitting Justice of the Supreme Court actually believes that African-American students are categorically less qualified than white students. Further loathsome is the possibility that a sitting Justice of the Supreme Court would be so blind to the way such a comment would be heard that he would say it in front of an open microphone and a court full of reporters. Scalia does have a record of not mincing words about his opinions, but that seems like a step beyond. One need only read his opinions to know that, whatever you think of his interpretation, he’s not a dummy. I can think of Justices who are wrong about any number of things, but none of them are stupid.

But not wanting something to be true does not make it untrue. Even when giving Scalia the benefit of the doubt here it would be a mistake not to hold his feet to the fire about what he actually said. That he said what he did is cause for concern. Certainly we ought pay attention to what Justice Scalia says.

And Justice Scalia, so should you.

  1. The comments in question can be found on pages 67-68 of the transcripts. (Same document as listed above.) ↩︎

  2. Which seems pretty far back to have to reach, even if the example had any validity. ↩︎

  3. The dishonesty may in fact not have been Stone’s. His source for the quote was The Hope for America: Conservative Videos Online, a site which purports to be a conservative resource but on which the articles supporting conservative positions read like Onion articles. Regardless of the intent of The Hope for America (who knows? see Poe’s Law) the quote on that site was almost identical to the section Stone used. ↩︎

  4. Page 68, lines 1 and 2. Actual line was «Maybe it ought to have fewer.» ↩︎

  5. Counsel is given a limited allotment of time for oral arguments. See the Visitor’s Guide to Oral Argument↩︎

  6. Grutter v Bollinger. A (admittedly quick and superficial) reading of the Court’s opinion shed no light to the point either Scalia or Garre may have been making. ↩︎

  7. The University of Texas at Austin’s policy is to automatically accept students from Texas high schools who graduated in the top ten percent of their high school’s class. Abigail Noel Fisher did not graduate in the top ten percent of her class, though reportedly she missed it by a narrow margin. The argument that this is preferential is based on an assumption that students from the top ten percent of predominantly white schools are better qualified than students from the top ten percent of schools of other races. Given the abundance of socioeconomic factors at play it is likely that this would be supported by the examination of aggregate data. However, there are undoubtedly schools in poor, sparsely populated, predominantly white parts of Texas. This «ten percent solution» would seem to give those students an advantage as well. That ought invalidate the idea that this policy is racially discriminatory. ↩︎

  8. See footnote 7. ↩︎