"Antonin Scalia...was a brilliant legal mind."
-President Barack Obama, Feb. 13, 2016, upon the death of the Supreme Court justice
The unexpected death last month of Supreme Court Justice Antonin Scalia, has created quite a swirl in numerous quarters.
While President Obama has nominated a successor, Republican presidential candidates, supported by their acolytes in the Senate, which has power to approve or disapprove any nominee, have vowed that they will not even give a hearing to anyone submitted by the president.
Two of the leading GOP contenders epitomize that outlook: Donald Trump has urged “delay, delay, delay,” while Ted Cruz has pledged to engage in a filibuster to assure that the president’s nomination is not given a vote on the merits in that body. Other Republican candidates have fallen into line, as has the Senate majority leader, Mitch McConnell. Democrats, for their part, take an opposite view. Hillary Clinton and Bernie Sanders have urged the Senate to act, and so has Minority Leader Harry Reid, among others.
Nevertheless, the outlook is dim for a successor to be confirmed during the president’s lame duck year. But how the nomination is handled in the Senate could be a pivotal issue in the ongoing presidential campaign.
While all those tempests are gaining steam, others have looked back upon Justice Scalia’s 29-year career on the Supreme Court, pointing to his formidable intellect, his sharp judicial craftsmanship, and the influence he has wielded on jurisprudence through his generally conservative outlook, highlighted by his advocacy of “originalism,” or divining the intention of the framers of the Constitution in construing its clauses, along with his “plain reading” approach to interpreting statutory language, with little regard for legislative history, as well as his disdain for looking through foreign law in construing cases coming before the high court, among other distinctive features of his jurisprudential outlook.
Justice Scalia participated in numerous cases from the Minnesota state court system and its federal counterpart, the 8th Circuit Court of Appeals, during his years on the court, dating back to 1986, when he was nominated by President Regan and unanimously confirmed by the Senate. In most of those cases, following his general pattern, he articulated a conservative slant and often provided a pivotal vote for the five-member majority in some of them. In others, he concurred in the court rulings, or in some instances, dissented, often with evocative language.
But his role in a singular Minnesota case stands out, not only because of its importance to jurisprudence, but because it reflects his approach to constitutional litigation in general and First Amendment law in particular.
The case was R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), a landmark lawsuit in Supreme Court jurisprudence. The signature ruling of Justice Scalia merits revisiting upon his passing.
The high-profile case arose out of the burning of a crude cross on the front lawn of an African-American family that had recently moved into a neighborhood in St. Paul. The deed was done by a group of youths, but the case that reached the Supreme Court involved only one of them, the juvenile known as R.A.V.
He was charged with violating St. Paul’s bias-motivated ordinance, St. Paul Legis. Code § 292.02, the law was one of many hate-crime measures that were adopted around that time by jurisdictions, academic institutions, and other organizations throughout the country. The St. Paul ordinance made it illegal to cause “anger, alarm, or resentment” by others based upon race, color, creed, religion or gender, including specific references to displaying a Nazi swastika as well as a burning cross.
The Ramsey County District Court dismissed the charge, reasoning that the measure was unconstitutional under the First Amendment of the U.S. Constitution. But the Minnesota Supreme Court, reinstated the prosecution, narrowing the measure to permissibly apply only to “fighting words” 464 N.W.2d 507 (1997).
While regarding the cross burning as “reprehensible,” Justice Scalia, writing for a five-member majority, reversed, holding the statute invalid on grounds that it was “facially unconstitutional,” a view shared by all of his colleagues, including three concurring opinions. Written in his sixth year on the high court, the decision was more tempered than some of his later writings, both on the court and off of it, and devoid of some of the colorful harsh and even demeaning language contained in his subsequent utterances. He reached his conclusion that the St. Paul ordinance was unconstitutional abridgement of freedom of expression under the First Amendment on several alternative grounds.
First, the proscription in the ordinance was overly broad. Accepting the construction by the Minnesota Supreme Court of the phraseology as “fighting words,” under Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), which may be constitutionally prohibited, Justice Scalia went on to note that the wording was overly inclusive because it “impermissibly creates the possibility … to handicap the expression of particular ideas.” Although non-verbal expressive conduct, such as a cross burning, can be restricted based upon the conduct itself, Scalia saw the ordinance as going too far in restricting behavior because of the “ideas it expresses.”
In addition to being overly inclusive, by extending to constitutionally protected speech or conduct, the St. Paul ordinance was defective because it was under-inclusive by it proscribing only certain “disfavored subjects,” such as the protected categories, but not others. Nor did the doctrine of “secondary effects,” used to salvage some anti-obscenity and pornography laws, save the measure because Scalia noted the absence of any adverse consequences of the prohibited behavior which themselves are subject to lawful restrictions.
The main bane of the measure, however, was that it was content-based. Because the proscribed topics were directed to the content of the expression, the ordinance runs afoul of the First Amendment guarantee of freedom of speech.
This rationale was cited, and relied upon, by the high court in its last Term, Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), in which it unanimously struck down a measure in Arizona that restricted the size, number, direction, and duration of temporary directional signs, a decision that has opened up a whole phalanx of First Amendment litigation challenging a variety of laws that refer, directly or indirectly, to content of prohibited expression.
Although the language of Justice Scalia’s majority decision in R.A.V.was more temperate than some of his later writings, particularly his dissents, such as his “I would hide my head in a bag” remark objecting to the court’s recognition of same sex marriage in Obergefell v. Hodges, 135 S.Ct. 7584 (2015), his opinion, nonetheless, contained some colorful commentary.
He felt that the St. Paul measure was deficient because it restricted certain types of behavior or expression, such as by races, while not being even-handed in regulating contrary conduct or views expressed by anti-racist proponents. In so doing, the measure was defective because it allowed advocates of certain stances to fight freestyle, while requiring the other side to follow Marquis of Queensberry Rules, referring to the regulations governing prize fighting.
He went on to note that the city of St. Paul has ample other means of curbing biased behavior, such as cross burning. It could do so, he offered, “without adding the First Amendment to the fire.”
The hate-crime framework overturned in St. Paul, which was overturned by Justice Scalia’s ruling, has witnessed some decline since its heyday at the time of the R.A.V.case. According to statistics obtained by the Department of Justice, the number of race-based crimes of violence has declined by about nearly 50 percent over the past two decades. There were 6,438 of them reported in 1995, compared with 3,470 in 2013.
Similarly, ethnic and national/origin bias crimes subsided during that same period from a reported 1,044 to 794, although there probably has been an uptick in the last couple of years due to anti-Muslim sentiments. Overall, however, the reported incidents have gone down in nearly all categories, except for a slight increase in those relating to sexual orientation, from 1,347 two decades ago, to 1,402 in the most recent annual report.
The R.A.V.case had deep roots in the St. Paul community. Unlike much High Court litigation these days, where the parties are represented by Washington, D.C., Supreme Court appellate specialists, the case was argued, from beginning to end, by local lawyers. Ramsey County Attorney Thomas Foley prosecuted the case for the state, while Edward Cleary, an attorney then in private practice acting as a designated public defender, represented the offending cross burner. After winning the case, Cleary later went on to write an outstanding book chronicling the litigation, “Beyond the Burning Cross,” before later becoming head of the Minnesota Lawyers’ Board of Professional Responsibility and then the chief judge of the Minnesota Court of Appeals, a position he still occupies today.
The local lore of R.A.V. was magnified by oral argument in the case, when Justice Harry Blackman, a St. Paul native, asked a number of probing questions about the state of the cross burning. His inquiries reflected his curiosity about the neighborhood, leading some observers to expect him to be designated to write the majority opinion. But, instead, he confined himself to joining in one of the three concurring decisions that supported Justice Scalia’s majority opinion.
For Justice Scalia, the decision marked a thoughtful, scholarly, and insightful analysis of First Amendment Law. Although somewhat tame, it reflected his strong commitment to First Amendment freedom-of-expression values, a position he consistently espoused throughout his career on the court in later majority opinions, concurrences and dissents.
His ruling was soundly derived from historical precedence, such as the Chaplinsky case, and has stood the test of time, as exemplified by its centrality in last year’s Reed decision.
Declining National Hate Crime Statistics
- 1995: 10,469 reported
- 2000: 9,924 reported
- 2005: 8,804 reported
- 2010: 8,208 reported
- 2013: 6,933 reported
*Originally published in Minnesota Lawyer.