IGoPlyo wrote:
He voted concordantly with the belief that employment and admission decisions based on race and gender are unconstitutional (and remarked that many of such decisions harm minority students) and that there is nothing in the Constitution that permits the killing of an innocent human being, for two examples.
A lot of ugly, stupid things have been said by people on both sides of the fence, so I hesitate to pick on one of the more temperate remarks here, but I think it's worth pointing out that the second "example" given by "IGoPlyo" is precisely the opposite of what Scalia said and how he voted. Scalia, in fact, seemed to enjoy making the point that there is nothing in the Constitution that prohibits (not "permits") the execution of an innocent person. The issue repeatedly came up in the context of habeas corpus proceedings in which a death row inmate claimed to have new evidence that proved his innocence. I think that Scalia was right, and I think that his point might usefully provide a basis for determining when executive intervention (through clemency and pardons) might be justified, but people on both sides seem to get fixated on the superficial outrageousness of Scalia's comments. (If "IGoPlyo" intended some sort of reference to abortion by mentioning "the killing of an innocent human being," I'm not aware that Scalia publicly expressed any views about constitutional prohibitions on abortion, although it's certainly possible that he did.)
My own views about Justice Scalia are somewhat mixed. I think that many of his detractors would be surprised by some of his very principled decisions concerning free speech (his vote that flag-burning is protected speech under the First Amendment was, in my view, obviously correct, but some of his more "liberal" colleagues took the other side) and procedural rights of criminal defendants, particularly regarding the right to confront one's accuser and the right to have a jury determine factual matters affecting sentencing.
At the same time, some of Scalia's opinions seem difficult to defend. His concurrence in the order staying the Florida recount in Bush v. Gore was bizarre, and his concurrence in the subsequent per curium opinion on the merits, particularly in its application of the Equal Protection Clause, significantly undermined my faith in the Court, and more specifically undermined my belief in Scalia's fundamental integrity as a jurist. Scalia also had a way of interpreting legislative language to fit his own personal preferences, and while it's a common charge against appellate judges, Scalia's broad proclamations about an objective theory of textual interpretation made him especially susceptible to criticism in such cases.
Scalia's dissenting opinions should probably be separated from his opinions for the Court. Some judges and justices say some pretty outlandish things when they know that their words express their views only. Still, Scalia had an especially pronounced tendency to say nasty things in his dissents, and I think that some of the language in his dissenting opinions ultimately hurt his effectiveness on the Court and may undercut his legacy in the future. His dissent in Obergefell v. Hodges (the same-sex marriage case) last term was perhaps the single most unprofessional opinion that I've ever seen from a Supreme Court justice, and it made me wonder if he was starting to become a bit unglued.
One final matter: I believe that Senate Majority Leader McConnell has behaved disgracefully in the wake of Justice Scalia's death. Over the years, I've seen both parties block legitimate nominees for appellate appointments. (Democrats, for example, blocked John Roberts from becoming a member of the U.S. Court of Appeals for the D.C. Circuit in 1992.) These tactics disgust me. McConnell has made little secret of his disdain for the President, but that's not a good reason for preventing the President from exercising the rights and obligations of his office.