In the days since Antonin Scalia’s death, he has been duly recognized as one of the most impactful justices in the Supreme Court’s history. A critical part of his troubling legacy has long been staring us in the face, although it finally started receiving the public scrutiny it deserves in recent years. As draconian punishments became the norm over the last three decades, the Supreme Court largely rubber-stamped these practices. Justice Scalia played a key role in this process, as his hardline stances on criminal punishment significantly contributed to mass incarceration, numerous executions, and systemic racial discrimination. Scalia was an outspoken supporter of harsh punishments and wanted the court to take an even more hands-off attitude toward so-called “tough on crime” laws.
Not long after he made it onto the court in 1986, Scalia’s influence on these issues began to be felt. In McCleskey v. Kemp, one of the first cases he heard, anti-death penalty advocates brought compelling evidence of pervasive racial discrimination in Georgia’s administration of capital punishment. A sophisticated statistical study demonstrated that sentencing was tied to the race of the victim and offender. All other factors being equal, blacks who killed whites were the likeliest to receive a death sentence. Justice Scalia was unfazed. During oral arguments, he derisively asked: “What if you do a statistical study that shows beyond question that people who are naturally shifty-eyed are to a disproportionate extent convicted in criminal cases, does that make the criminal process unlawful?”
John Charles Boger, who represented the black death-row prisoner in McCleskey, responded by pointing to the obvious: “This is not some sort of statistical fluke or aberration. We have a century-old pattern in the state of Georgia of animosity [toward black-Americans].” Scalia and four other justices nonetheless chose to analyze discrimination out of its social context, including in cases from Southern states with a lengthy history of slavery, segregation, and lynchings.
Scalia was in the majority as the court held that statistical proof of systemic discrimination in the death penalty is irrelevant. A defendant must instead prove intentional discrimination in his own case, an almost impossible standard without considering systemic patterns. Many experts consider McCleskey among the worst Supreme Court decisions of all-time. It largely closed the door to statistical evidence as a means of challenging systemic discrimination in criminal punishment.
Scalia would also play a significant role as the Supreme Court licensed ruthless sentences leading America to world record incarceration levels. He wrote the operative part of the influential Harmelin decision, a 1991 plurality opinion holding that the Eighth Amendment ban on “cruel and unusual punishments” does not require that a prison sentence be “proportional” to the crime. The court thus upheld a life-sentence for cocaine possession.
Scalia again was in the majority in Lockyer v. Andrade, a 2003 case upholding a 50-year-to-life sentence under California’s three-strikes-law for a man who shoplifted videotapes worth $153 because he had prior convictions for petty theft, burglary, and transporting marijuana. Erwin Chemerinsky, who zealously represented the prisoner, was in tears as the media asked him about his reaction to the court’s inhumane decision.
McCleskey, Harmelin, and Lockyer were all 5–4 decisions that could have been decided otherwise if Scalia had thought differently. Naturally, he was not a swing vote but a sure one for harsh justice.
While the justices might not have been able to stop mass incarceration singlehandedly, they definitely could have limited it. Indeed, the court’s belated decision in Brown v. Plata, has contributed to reducing California’s incarceration rate. In this 2011 case, the court ordered California to reduce its dramatically overcrowded prison population because “depriv[ing] prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity.” In a vehement dissent, Scalia charged that this was “a judicial travesty” and that the majority was “wildly” overstepping its authority.
Similarly, he fiercely dissented in other rare cases where the court decided to check ruthless punishments. If it had been up to Scalia, it would still be constitutional to execute mentally retarded people or teenagers, not to mention sentence teenagers to life imprisonment without the possibility of parole for homicide or any other crime.
This aspect of his legacy has been overshadowed by the common misconception that “at least Scalia was quite fair to criminal defendants.” To his credit, he concluded in several procedural cases that juries, not judges, must decide if all facts leading to harsher punishment are proved beyond reasonable doubt. In various other cases, he found that police searches went too far. But these are exceptions. He regularly took an extremely narrow view of due process, such as when he argued that the Constitution does not create “a right to demand judicial consideration of newly discovered evidence of innocence.” Scalia further suggested that executing an innocent person would not be unconstitutional per se. More than 1,300 prisoners were executed while Scalia was on the Supreme Court though he was persuaded that his colleagues created unjust procedural hurdles to executions by baselessly expanding the rights of death row prisoners.
Had Scalia had his way, far more people would have been executed during his tenure and the court would have adopted an even more accommodating approach to mass incarceration. In his view, merciless punishments were just deserts for “evildoers.” He scoffed when fellow justices advanced a more nuanced view of criminal behavior or occasionally suggested that draconian punishments were dehumanizing. He was certain that the court already cared too much about people who faced the death penalty or endless prison sentences. Justices who disagreed with him were judicial activists who refused to defer to elected branches of government. Of course, Scalia did not do so himself in multiple cases. Tellingly, he voted to strike down campaign finance legislation in Citizens United. He likewise voted twice, unsuccessfully, in favor of eviscerating the democratically enacted Affordable Care Act.
Scalia still cultivated the image of an impartial judge whose decisions were not shaped by his personal values. He was the originalist, the defender of procedural rigor, and the anti-judicial activist. If so, he may have been the sole justice in history whose moral values did not play a major role in his judicial philosophy. Judges are only human.
Scalia’s writing sheds additional light on why he embraced merciless punishments. In a 2002 article, he insisted that God wants us to execute murderers. He nevertheless began his essay by claiming that his moral values have no bearing on how he rules in capital cases. A few paragraphs later, however, Scalia wrote “I could not take part in [the death penalty] process if I believed what was being done to be immoral,” thereby contradicting his disclaimer.
Besides being among the countries that execute the most prisoners alongside authoritarian regimes, America nearly has the highest incarceration rate worldwide. Blacks, Latinos, and poor whites are the main targets of draconian punishments, which are heavily shaped by race and class discrimination. This human toll is part of Antonin Scalia’s legacy.