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

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