The late Judge Antonin Scalia is something of an icon among conservatives. Is this affection justified or was he, in fact, a hypocrite?

Judging  by his dissenting opinion in Obergefell v. Hodges, the case in which the Supreme Court ruled that same sex couples had a right to marry, the answer is an emphatic “yes”. He was indeed a hypocrite.

But let’s back up a bit. In 2009 the newly elected President Obama nominated Sonia Sotomayor[1] to the Supreme Court to replace retired Judge David Souter. The Senate confirmed her nomination and she assumed office in August 2009.

From the start Judge Sotomayor’s appointment was controversial. In a speech at Berkley in 2001 she had said:

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life”.

Do you find this outrageous?  I do.

Surely the task of a judge is to apply the law impartially. Even Sotomayor’s supporters described her choice of words as “poor”. She tried to explain them away during her confirmation hearings saying:

“It is very clear that I don’t base my judgments on my personal experiences — or my feelings or my biases”


“[Judges]test themselves to identify when their emotions are driving a result, or their experiences are driving a result, and the law is not.”

So far so good. Judges apply the law irrespective of their emotions and biases.

Scalia was certainly a strong protagonist of this point of view. In his dissenting opinion in King vs Burwell, one of the many legal challenges to “Obamacare”, Scalia virtually accused the majority of acting as legislators rewriting parts of the Affordable Care Act so as to make it fit in with constitutional requirements[2]. This, he argued, was not on. If part of a statute was unconstitutional as it stood then it must be struck down. Judges apply the law; they do not make it.

His point of view is best summarised in this widely quoted statement:

If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.

Just so. The law is the law. Or, to quote Scalia again:

You think there ought to be a right to abortion? No problem. The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court can compromise.

So Sotomayor, generally regarded as a liberal, and Scalia, the Court’s arch-conservative, both agree? Judges apply the law. Background, ethnicity, religion, gender, do not enter into it. Or, at least, they ought not to.

That’s settled then.

Or is it?

It is hard to imagine a man with Scalia’s views embracing Sotomayor’s notorious “wise Latina woman” point of view.

Here’s what he said in his dissenting opinion in Obergefell v. Hodges:

Take, for example, this Court, which consists of only nine men and women, …Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.

I find this as outrageous as I would the suggestion that an evangelical Christian ought to be denied confirmation on the grounds of his or her religion.

Isn’t this the sort of skewed logic that protagonists of affirmative action use?

Isn’t it the sort of argument that militant feminists use?

Where does it stop? What about Muslim judges or Native American judges? How about gay or lesbian judges?

Can we have twofers? Or threefers? Could a lesbian Muslim judge count as a woman, a Muslim and a lesbian?

Or do we need to expand the Supreme Court to include a representative of every conceivable group?

Or maybe, just maybe, we always just go for the person we think is the best fit for the job regardless of gender, race, religion, ethnicity or hairstyle.

On the other hand, I hereby put myself forward as the Supreme Court judge representing bald men over the age of seventy who ride bicycles.

This is utter nonsense and I’m afraid Scalia is revealed as a hypocrite. Choosing the right person for the job irrespective of anything else is the only sensible course.

Still remember, there’s this bald septuagenarian cyclist awaiting his chance.
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[1] Full disclosure. I do not think this was a good choice.

[2] It’s a complicated opinion. You can find the full text here.