Bad Attitudes, a magazine of culture, politics, art, literature, 
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Justice Antonin Scalia,
Champion of the Overdog


Jerome Doolittle

On June 7 of 1995 at the Limestone Correctional Facility in Alabama, according to federal court documents, a prisoner named Larry Hope was:

“Cuffed standing to a hitching post, with his arms at approximately head level, in the hot sun for seven hours with no shirt, metal cuffs, only one or two water breaks, and no bathroom breaks. At one time, prison guards brought a cooler of water near him, let the prison dogs drink from the water, and then kicked the cooler over at Hope's feet.”

Mr. Hope had been hung out to dry because of a “physical altercation” with a guard at his chain gang site. The prisoner said he had fallen asleep during the ride there and the guard had choked him when he failed to get out of the bus. The guard said otherwise.

But the nature of the altercation didn’t concern the court.

The question before it was whether Mr. Hope could sue his tormentors for damages on grounds that they had subjected him to cruel and unusual punishment in violation of the eighth amendment to the Constitution.

That question had crawled upwards at the usual speed of American justice for some seven years before landing in the U.S. Supreme Court this week. Having now heard the arguments, the high court will decide one of these days whether the law permits punishing the guards for their brutality.

A person unencumbered by legal training might suppose that a question so simple would have been answered the first time it came to any judge’s attention. Was Mr. Hope’s punishment cruel? Obviously. Was it unusual? For God’s sake, let’s hope so.

Why then should Mr. Hope have had to clamber all the way up to the Supreme Court for a decision on whether agents of the state should be liable for damages when they violate the Constitution they are sworn to uphold?

A good working hypothesis is that President Ronald Reagan and the Presidents Bush have succeeded over the past two decades in packing the federal courts with right-wing legal mullahs of the Antonin Scalia type.

This week Mr. Hope’s case gave us a particularly clear view of what happens to lower-case justice when it falls into the hands of judges like the upper-case Justice Scalia. From The New York Times of April 18:

“The Alabama solicitor general, Nathan A. Forrester, said the restraining bar was not meant as punishment but as an incentive to go back to work. Under the state’s prison regulations, Mr. Hope would have been released as soon as he indicated a willingness to work, Mr. Forrester said, adding that it would be ‘exceedingly unfair’ to hold the guards liable.

“Justice Antonin Scalia eagerly agreed. Given that Mr. Hope possessed the means to his own release, Justice Scalia said, the guards who handcuffed him to the post had no way of knowing that he would in fact remain there all day.”

Alabama’s argument didn’t convince everybody, however, as the Times article went on to make clear:

“‘Is it your position,’ Justice Sandra Day O’Connor asked Mr. Forrester in a tone between incredulity and sarcasm, ‘that the state could legitimately keep him hanging from this rail no matter how hot it was, for as long as the state wishes, without the administration of water or bathroom breaks, just because there’s a regulation that says you can do it?”

It may be that while Justice Scalia is a city boy, office-born and bred, Justice O’Connor grew up on an Arizona cattle ranch and knows what it’s like to spend seven hours in the hot sun.

More likely, though, Justice Scalia is just plain mean in the manner of small-minded men everywhere who hold jobs too large for them. Remember that snotty, sarcastic teacher you had back in high school?

Early this year the justice was on a Pew Forum panel which explored religion, politics, and the death penalty. The following exchange during the question and answer period will, I hope, convey a sense of the jurist’s gentle manner, his sympathy for the outcasts of this earth, and, above all, the modesty with which he conceals the towering superiority of his intellect.

JUSTICE SCALIA:   “Number one, in my 15 years on the bench, I can only think of one case when I thought there was a little doubt as to the substantive guilt. The vast majority of issues that are appealed involve foot faults during the course of the prosecution -- evidence was admitted that shouldn’t have been admitted and so forth. But the case where there is serious doubt about whether this is really the person that did it is enormously rare*. . .”

QUESTION:   “Hi, this is a comment for Justice Scalia. My name is David Bates. I’m a formerly incarcerated individual, served ten years in prison, was falsely accused of a crime, tortured, beaten. I’m worried because this seems more like a joke. You have innocent people on death row right now who have been forced to sign confessions, who have been tortured, suffocated and beaten, and it’s like this is a tea party here. I’m scared that you’re a justice. I’m honest. I’m scared. I’m worried.”

JUSTICE SCALIA:  “And your question, sir?”

QUESTION:   “This is going to be a comment. I’m saying I know personally there are several people on death row who are there because of forced confessions, who have been tortured and suffocated, and that needs to be addressed.”

JUSTICE SCALIA:   “You should call somebody about that and have it investigated, sir. Do not keep it to yourself. Take it to the police.”

. . . or alternatively, Bates, you might want to just shove it.

April, 2002

*He was speaking in Illinois, where DNA testing has in recent years cleared 13 innocent men who were waiting on death row for not-so-innocent men like Justice Scalia to kill them.


Copyright © 2004 by Jerome Doolittle