Justice Antonin Scalia,
Champion of the Overdog
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 didnt 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 judges
attention. Was Mr. Hopes punishment cruel? Obviously. Was it unusual?
For Gods sake, lets 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. Hopes 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 states 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
Alabamas argument didnt convince everybody, however, as the Times
article went on to make clear:
Is it your position, Justice Sandra Day OConnor 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 theres a regulation that says you can do
It may be that while Justice Scalia is a city boy, office-born and bred,
Justice OConnor grew up on an Arizona cattle ranch and knows
what its 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 jurists 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 shouldnt 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. Im a formerly incarcerated individual, served ten years in
prison, was falsely accused of a crime, tortured, beaten. Im 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 its like this is a tea party here. Im
scared that youre a justice. Im honest. Im scared. Im
JUSTICE SCALIA: And your question, sir?
QUESTION: This is going to be a comment. Im 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
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.
*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.