Why is Antonin Scalia taking fashion cues from a Renaissance saint? Read on to find out.
Supreme Court Justice Scalia is no stranger to injecting politics into new realms, and he established a fresh high-water mark at yesterday’s inaugural ceremony. Supreme Court decisions have always been political, of course – see Roe v. Wade – but Scalia has long taken politicization to new heights, as in his dissent in a June 2012 immigration law case, which he chose to read in full from the bench. Far from addressing the matter at hand, he veered into a caustic critique of the Obama Administration’s immigration policy in general, in what was widely seen as a swipe at a president he evidently thinks very little of. “After twenty-five years on the Court, Scalia has earned a reputation for engaging in splenetic hyperbole—but he outdid himself this time,” wrote Jeffrey Toobin at the time. Toobin explained:
His opinion . . . ranged over several contemporary controversies, whether or not they had any relevance to the Arizona case. He noted, for example, that Obama recently used an executive order to accomplish some of the goals of the DREAM Act, and exempt certain young people from deportation. (This decision came well after the Arizona case was argued and was legally irrelevant to the issue at hand.)
The Times reported that “commentators from across the political spectrum have been saying that Justice Scalia, who is the most senior as well as, hands down, the funniest, most acerbic and most politically incorrect of the justices, went too far.” Too far, as well, in citing slavery-era laws to defend his position, as if harking back to the “good old days” when minorities knew their place and stayed in it. Conservative appeals court judge Richard A. Posner opined in Slate that “It wouldn’t surprise me if Justice Scalia’s opinion were quoted in campaign ads. The Washington Post editorialized against the screed, writing that the justice’s “partisan discredit to the court” made a mockery of the presumption that “five Republican-appointed justices and four Democratic-appointed ones pass judgment in a way that impresses most Americans as an act of law rather than politics.” Scalia’s intemperance and willingness to take on issues, like the president’s temporary reprieve for illegal-immigrant children, that could someday come before the court “endanger not only his jurisprudential legacy but the legitimacy of the high court.”
It’s no secret, then, that Scalia disagrees with Obama a healthy 100 percent of the time. It surely rankled him that, in the Monday speech, Obama said that “our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity, until bright young students and engineers are enlisted in our workforce rather than expelled from our country.” Scalia has long expressed disdain for the president and his policies, sputtering during arguments over the constitutionality of the Affordable Care Act that being forced to read the entire 2,700-page legislation would be “cruel and unusual punishment.” (That’s quite a high bar to clear, considering the justice doesn’t consider even the death penalty “cruel and unusual.”)
But it seems Justice Scalia took his spite to new heights at the inauguration when he donned the funny-looking hat in the photo at left. At first, no one was sure what was up. The Hill said it “appeared to have been taken straight out of a Shakespeare play,” and others compared its bizarreness to Aretha Franklin’s similarly panned headgear from the 2009 inaugural. It garnered much attention on Twitter, even drawing running commentary from Senator Claire McCaskill, who snarked four years ago about another strange Scalia toque (this one a peaked-corner cap) about “Scalia’s weird hat” and tweeted this year:
Ok. Men of the Supreme Ct.Breyer’s scaliawannabehat, Kennedy’s stocking cap.And then there’s Alito in the shades.
— Claire McCaskill (@clairecmc) January 21, 2013
Others in the Twitterverse suggested it was “one of those ROOTS berets from the 2002 Winter Olympics” or wondered “Why is Antonin Scalia wearing a renaissance era painter’s hat?” and introduced the hashtag “#StealingArethasThunder.” Esquire’s Tom Junod weighed in, “Scalia in that hat: the mad medieval monk, fresh from illuminating a biblical manuscript and torturing heretics.”
It eventually emerged that the headgear was a gift from the Thomas More Society, a conservative law firm dedicated to overturning abortion-related laws. The hat is a replica of the one More wears in Hans Holbein’s famous portrait. (For what it’s worth, this is the benefit of art history courses: My first thought, upon seeing the hat, was, “Wow, that looks like something out of a Holbein painting.” Of course, it helps that More and Scalia are both jowly, serious-looking white guys.) Scalia is a regular attendee at the Society’s annual Red Mass, a Catholic service and awards ceremony for religious-minded lawyers and government officials. The Society claims its mission is ” to restore respect in law for life, marriage, and religious liberty” through pro-bono legal work that aids clients challenging everything from government restrictions on “religion in the public square” to laws curbing protests outside abortion clinics or prohibiting discrimination against gay people.
Portrait of Thomas More, by Hans Holbein (1527)
The organization is named for Thomas More, the English lawyer whose opposition Henry VIII’s attempt to coerce the Catholic Church into approving his divorce from Anne Boleyn cost him his head in 1535. Today, More is glorified on the right as a champion of religious liberty. ”I am the King’s good servant – but God’s first,” he supposedly said just before his execution. Recently, the Society’s biggest crusade has been against the “contraception and abortifacient” mandate in the Affordable Care Act. (Medical professionals point out that emergency contraception is not the same as the abortion pill, and many scientists doubt the alleged effects of the morning-after pill on an implanted egg.)
It beggars belief that Scalia simply grabbed the nearest hat in his closet; far more likely is that the man who is so outspoken in his disregard for Obama’s policies chose, when required to attend an event at which he was denied a speaking role, to telegraph that disdain via his wardrobe. Does Scalia see himself as a modern-day Thomas More, staunchly defending religious liberty against the creeping secularism of the ACA and the Democratic Party in general? Or was he simply venting his anger at having to serve as a silent showpiece at the inauguration of a president of whom he disapproves? On the website of the conservative religious journal First Things, Matthew Schmitz wrote:
Wearing the cap of a statesman who defended liberty of church and integrity of Christian conscience to the inauguration of a president whose policies have imperiled both: Make of it what you will.
Scalia doesn’t do well with serving as a prop or bestowing what he might see as a legitimizing presence on a message he does not endorse. He has not attended a State of the Union address since the mid 1990s, and Clarence Thomas is often a no-show, saying “it has become so partisan.” (Pot, meet kettle.) The conservative justices were reportedly steamed when the President, during his 2010 State of the Union address, explicitly challenged the Court’s decision in the Citizens United case, saying it “reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.” Justice Alito mouthed “not true,” and other justices complained at the unseemliness of being forced to sit quietly as the head of one branch of government excoriated the independent decisions of the highest members of another. Later, John Roberts would say, “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling.” Conservatives slammed Obama’s remark — Utah Sen. Orrin Hatch called it “rude,” and conservative law professor Randy Barnett griped that it constituted “an act of intimidation” — and even the Post admitted that “legal experts said they had never seen anything quite like it, a rare and unvarnished showdown between two political branches during what is usually the careful choreography of the State of the Union address.”
So it’s not far-fetched to assume that Scalia felt his forced attendance at the inauguration was a similar attempt to co-opt the court into at least appearing to lend tacit approval to the content of Obama’s speech. He was able to shrug off the invitation to the State of the Union, but breaking with tradition to stay away from an event as big as the inauguration was apparently too partisan even for Scalia. So he punched the clock, put in his half-day, and tried to signal his dissatisfaction with the whole misbegotten liberal experiment with his passive-aggressive choice of headgear. Whatever Obama had to say, Scalia certainly knew he wouldn’t agree it — and indeed, the president’s progressive conviction that “preserving our individual freedoms ultimately requires collective action” runs counter to the justice’s individualistic, originalist philosophy. And Scalia certainly knew that a president inclined to celebrate the rights of women and minorities would not be delivering a message he wanted to even appear to endorse.
Obama made history when he became the first president to use the word “gay” in reference to sexual orientation in an inauguration speech: “Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law.” By contrast, Scalia couldn’t care less whether laws treat gay people as equal Americans; in fact, he thinks such laws actually violate the rights of those whose religious beliefs proscribe homosexuality. He dissented from the 2003 Lawrence v. Texas decision that overturned that state’s ban on sodomy, which had effectively criminalized gay sex. At the time, he accused the court of having “largely signed on to the so-called homosexual agenda” and bemoaned the elimination of “moral opprobrium that has traditionally attached to homosexual conduct.” Overturning laws against gay sex would ultimately lead to a panoply of evils, including bigamy, “adult incest,” and “bestiality.” Classy. (At least we don’t have to wonder how he’ll vote on the two cases concerning same-sex marriage now on the court’s docket.)
Justices Thomas, Sotomayor and Kagan listen to the National Anthem. Scalia stands by looking peeved.
Given the justice’s long history of opposition to women’s rights on issues like abortion and equal pay, as well as his disgust for affirmative action policies that benefit minorities, it’s no surprise that he chose to deliver a silent, sartorial rebuke to a president whom he views as an overreaching, even Constitution-bending liberal ideologue. Scalia’s association with the Thomas More Society is well-known, but by aligning himself so blatantly on inauguration day with the organization dedicated to overturning “Obamacare” and to fighting the mandate for employers to provide their workers health plans that cover contraception, he leaves little doubt how he will vote should a case like that of Hobby Lobby, a company whose evangelical owners object to the mandate and whose case is still working its way through federal courts, ever come before the Supreme Court. Over 40 cases are pending at various levels of the judicial system, and it’s likely that at least a handful will be decided in time to make the highest court’s docket for its fall term. The Society recently defended Illinois’ Tribune Health Group in a suit that sought an injunction for “temporary relief from t he federal HHS mandated healthcare coverage of abortifacients, sterilizations, and contraceptives.” Considering how gingerly justices approach issues that might come before the court – see the ritual dance around the abortion “litmus test” during confirmation hearings – it’s striking that Scalia decided a gift from a potential litigant before his bench was appropriate headgear for the inauguration of the man whose government that litigant will be suing. At the time of the immigration dissent, commentators opined that Scalia had “jumped the shark here” and that he “had a tin ear,” behavior that seemed on full display in Washington on Monday. Unlike that dissent, the obscurity of the hat’s origin and the general furor of the inauguration (Michelle’s dress! Beyonce’s lip-syncing!), it can’t be said that it raised eyebrows beyond the short burst of interest on Twitter.
Scalia’s act of protest wasn’t as obvious or loud as the anti-abortion zealot yelling “What about the babies?” from a tree on the Mall But the hat nevertheless amounted to a giant “f-you” to the 44th president of the United States. All in all, it was a typically low-class way for the irascible Scalia to start Obama’s second term.
. . . So Well Read. . . 