Feb 14th 2016

Top 5 Scalia Rulings that helped Progressives

by Juan Cole

Juan Cole is the Richard P. Mitchell Professor of History and the director of the Center for South Asian Studies at the University of Michigan. His latest book, Engaging the Muslim World, is just out in a revised paperback edition from Palgrave Macmillan. He runs the Informed Commentwebsite.

Justice Antonin Scalia died in Texas on Saturday. IC sends condolences to his family. Scalia is widely recognized as having been a brilliant legal thinker and a fine and passionate prose stylist. He was the first Italian-American to serve on the Supreme Court. It is worth remembering at this time when immigrants are being dumped on that his father was a poor immigrant from Sicily who rose to become a professor of Romance Languages. I don’t imagine Justice Scalia and I would have agreed about very much. But perhaps his passing is an opportunity to point to a few things on which we, as Americans, did agree, because of our commitment to the Constitution, however different our interpretation of it might be in general.

1. Scalia took important stands to preserve the Fourth Amendment, which forbids unreasonable, warrantless searches by government of our personal effects and papers. Scalia wrote the majority opinion in the US v. Jones (2012), finding that if law enforcement sneaks under your car while it is parked in your driveway and attaches a GPS to it, that is a search under the Fourth Amendment. The court reversed the conviction of a drug dealer who had been so tracked without a warrant. Many in the police and FBI had argued that you are in public when you are driving around so it is not a violation of your privacy to track you as you go about your daily routine. In this case, the routine involved drug dealing. But civil libertarians replied that no one expects to be tracked 24/7 and that being subjected to such an intensive scrutiny for months at a time is in fact a form of search, for which a warrant should be obtained. Scalia here pushed back Big Brother.

2. In Kyllo v. United States in 2001, Scalia wrote the majority opinion that the government can’t use infrared imaging to look inside your home from the street without a warrant.

3. Scalia concurred in a crucial ruling by the court that the Environmental Protection Agency has the right to regulate carbon dioxide emissions. SCOTUS found in the EPA’s favor 7-2. President Obama is using this ruling to essentially close down most old, polluting coal plants. As these are replaced by cleaner natural gas or in many cases by wind and solar, half a billion tons a year of CO2 emissions could be avoided this way. That is a pretty powerful environmental legacy, to which Scalia contributed.

4. In EEOC v. Abercrombie & Fitch Stores, Scalia last summer wrote the majority decision. The court found that the stores had to offer Muslim-American Samantha Elauf a faith accommodation even if she did not ask for one. A&F had declined to hire her when she interviewed for a sales job wearing her Muslim headcovering or hijab because the firm said it had a policy against employees wearing hats. Everyone recognizes that if she had explicitly stated that she wore hijab for religious reasons the company could not have discriminated against her. But she didn’t say anything about her faith. Scalia and 7 colleagues found that the store was in error; they had to honor her conscience whether she asked them to or not. While some critics saw this ruling as a dangerous exaltation of religion over other kinds of rights, I would argue that accommodating the conscience of citizens is a progressive principle. It is the same notion that underlies allowing conscientious objectors to opt out of war-fighting, which I believe is also progressive. For the most part, putting personal values that do not harm others above property rights and other regimenting structures is progressive.

5. Scalia also joined the rest of the court in deciding that a jailed Salafi Muslim had a right to grow a beard. Prison officials argued that a beard might make it difficult to identify the prisoner, and that he might be able to hide contraband in it. In fact, he offered only to grow a short beard. Scalia, a conservative Catholic, actually castigated him. Religious commands are categorical, he said. The Salafi had to grow a big bushy beard if that is what he thought God commanded. (Most Muslims don’t agree with the Salafi interpretation and the vast majority of Muslim men don’t wear beards). I was amused by Scalia scolding the Salafi for being willing to compromise. The reason a progressive can approve of this ruling is that a beard does not affect anyone else, and victimless practices should be allowed in a liberal society. The Justices found that the prison officials could surely find other ways to make sure the Salafi prisoner could be recognized and to prevent him from carrying around a hacksaw in his beard. The conservatives on the court admittedly cited the Hobby Lobby decision here, but Sotomayor and Ginsburg dissented from that reference, the latter precisely because growing a beard only affects the individual, not anyone else. In general, increasing prisoners’ rights with regard to their own persons is progressive.




For Juan Cole's web site, please click here.

TO FOLLOW WHAT'S NEW ON FACTS & ARTS, PLEASE CLICK HERE!

Browse articles by author

More Essays

Mar 8th 2024
EXTRACT: "This study suggests that around 10% of people diagnosed with dementia may instead have underlying silent liver disease with HE causing or contributing to the symptoms – an important diagnosis to make as HE is treatable."
Jan 28th 2024
EXTRACT: "Health disparity is a powerful weapon in the savage class warfare otherwise known as neoliberalism. (In 2020, the RAND Corporation did a study of the transfer of wealth over the last several decades from the working-class and the middle-class to the top one percent. Their estimate is a staggering $47 trillion – that is how much the “upward redistribution of income” cost American workers between 1975 and 2018.) Neoliberalism is a brutal form of labor suppression, which uses health as a means of maintaining and reproducing a condition in which wealth is constantly being redistributed upwards, and the middle-class is kept in a constant state of fear of sinking into the ranks of the poor. Medical expenses are the leading cause of bankruptcies in America – and that’s according to the American Bankruptcy Institute. The ballooning costs of healthcare serve to maintain a system marked by morally unacceptable health inequity and injustice."
Jan 28th 2024
EXTRACT. "But living longer has also come at a price. We’re now seeing higher rates of chronic and degenerative diseases – with heart disease consistently topping the list. So while we’re fascinated by what may help us live longer, maybe we should be more interested in being healthier for longer. Improving our “healthy life expectancy” remains a global challenge. Interestingly, certain locations around the world have been discovered where there are a high proportion of centenarians who display remarkable physical and mental health. The AKEA study of Sardinia, Italy, as example, identified a “blue zone” (named because it was marked with blue pen),....."
Jan 4th 2024
EXTRACT: ""Tresors en Noir et Blanc" presents 180 prints from the collection of the Musee des Beaux-Arts de la Ville de Paris, also known as the Petit Palais.  The basis of the museum's print collection is 20,000 engravings amassed by a 19th-century collector, Eugene Dutuit, " ----- "This wonderful exhibition, the tip of a great iceberg, serves to emphasize how unfortunate it is that the tens of thousands of prints owned by the Petit Palais are almost never seen by more than a handful of scholars who visit them by appointment.  Nor is the Petit Palais the only offender in this regard,....."
Jan 4th 2024
EXTRACTS: "And that is the clue to Manet’s work. He paints painting, regardless of his subject: he paints the medium itself, it as if he is constantly reminding us that this is a painting," ..........."This is a new conception of painterly truth at play here, a new fidelity to truth. Manet is the Kant of painting because he initiates a similar kind of “Copernican revolution” – we do not see the world as it is but as we are. " -------- " Among the most remarkable but unfamiliar of Manet’s work on display are those depicting the bloody aftermath of the Paris Commune of 1871.There is no question regarding Manet’s condemnation of the Versailles government’s actions following the defeat of the Commune, when some 25,000 Parisians were gunned down, including women and children."
Dec 27th 2023
EXTRACT: "Think of our brain like a map. When we’re young, we explore all corners of this map, sending out connections in every direction to make sense of our environment. Before long, we figure out basic truths – such as how to secure food, or where we live – and the neurological paths that make up these connections strengthen. Over time, a network emerges that reflects our unique experiences. Regions we re-visit often will develop established paths, whereas under-used connections will fade away. ---- Conditions such as addiction, chronic depression and post-traumatic stress disorder (PTSD) are characterised by processes such as repetitive negative thinking or rumination, where patients focus on negative thoughts in a counterproductive way. Unfortunately, these strengthen brain connections that perpetuate the unfavourable mental state."
Dec 14th 2023
EXTRACT: "While no one was looking, France has become a melting pot of European peoples. Its neighbors have traditionally been welcomed, and France progressively turned them into French boys and girls in the next generation."
Dec 4th 2023
EXTRACTS: "Being rich is essentially about having more stuff in general, including bigger houses." "..... if SUVs had not become widely adopted largely as a status symbol for the global middle classes, emissions from transport would have fallen by 30% over the past ten years. For the largest class of SUVs, six of the ten areas of the UK registering the most sales were affluent London boroughs like Kensington and Chelsea."
Nov 11th 2023
EXTRACT: "By using these “biomarkers”, researchers have discovered that when a person’s biological age surpasses their chronological age, it often signifies accelerated cell ageing and a higher susceptibility to age-related diseases." ----- "Imagine two 60-year-olds enrolled in our study. One had a biological age of 65, the other 60. The one with the more accelerated biological age had a 20% higher risk of dementia and a 40% higher risk of stroke."
Nov 6th 2023
EXTRACT: "We are working on a completely new approach to 'machine intelligence'. Instead of using ..... software, we have developed .... hardware that operates much more efficiently."
Nov 6th 2023
EXTRACTS: "When people think of foods related to type 2 diabetes, they often think of sugar (even though the evidence for that is still not clear). Now, a new study from the US points the finger at salt." ...... ".... this type of study, called an observational study, cannot prove that one thing causes another, only that one thing is related to another. (There could be other factors at play.) So it is not appropriate to say removing the saltshaker 'can help prevent'." ..... "Normal salt intake in countries like the UK is about 8g or two teaspoons a day. But about three-quarters of this comes from processed foods. Most of the rest is added during cooking with very little added at the table."
Oct 26th 2023

 

In 1904, Emile Bernard visited Paul Cezanne in Aix.  He wrote of a conversation at dinner:

Sep 11th 2023
EXTRACT: "Many people have dipped their toe into the lazy gardener’s life through “no mow May” – a national campaign to encourage people not to mow their lawns until the end of May. But you could opt to extend this practice until much later in the summer for even greater benefits. Allowing your grass to grow longer, and interspersing it with pollen-rich flowers, can benefit many insects – especially bees. Research finds that reducing mowing in urban and suburban environments has a positive effect on the amount and diversity of insects. Your untamed lawn won’t only benefit insects. It will also encourage more birds, such as goldfinches, to use your garden to feed on the seeds of common wildflower species such as dandelions."
Aug 30th 2023
EXTRACT: "Eliot remarked that Shakespeare's greatness not only grew as the writer aged, but that his development became more apparent to the reader as he himself aged: 'No reader of Shakespeare... can fail to recognize, increasingly as he himself grows up, the gradual ripening of Shakespeare's mind.' "
Aug 25th 2023
EXTRACTS: "I moved here 15 years ago from London because it was so safe. Bordeaux was then known as La Belle au Bois Dormant (The Sleeping Beauty). It's the wine capital of France and the site of beautiful 18th century architecture arrayed along the Garonne river." ---- "What’s new is that today lawlessness is spreading into the more comfortable neighborhoods. The favorite technique is to defraud elderly retirees by dressing up as policemen, waterworks inspectors or gas meter readers. False badges including a photo ID are easy to fabricate on a computer printer. Once inside, they scoop up most anything shiny as they tip-toe through the house."
Aug 20th 2023
EXTRACT: "The 1953 coup d'etat in Iran ushered in a period of exploitation and oppression that has continued – despite a subsequent revolution that led to huge changes – for 70 years. Each year on August 19, the anniversary of the coup, millions of Iranians ask themselves what would have happened if the US and UK had not conspired all those years ago to overthrow Iran’s democratically elected leader."
Aug 18th 2023
EXTRACT: "Edmundo Bacci: Energy and Light, curated by Chiara Bertola, and currently on view at the Peggy Guggenheim Collection in Venice, is the first retrospective of the artist in several decades. Bacci was a native of Venice, a city with a long and illustrious history of painting, going back to Giorgione and Titian, Veronese and Tiepolo. As a painter, he was thoroughly immersed in this great past – as an artist he was determined to transform and remake that tradition in the face of modernity and its vicissitudes, what he called “the expressive crisis of our time.” That he has slipped into obscurity affords us, at the very least, an opportunity to see Bacci’s work essentially for the first time, without the burden of over-determined interpretations or categories."
Aug 12th 2023
EXTRACT: "Is Oppenheimer a movie for our time, reminding us of the tensions, dangers and conflicts of the old Cold War while a new one threatens to break out? The film certainly chimes with today’s big power conflicts (the US and China), renewed concern about nuclear weapons (Russia’s threats over Ukraine), and current ideological tensions between democratic and autocratic systems. But the Cold War did not just rest on the threat of the bomb. Behind the scientists and generals were many other players, among them the economists, who clashed just as vigorously in their views about how to run postwar economies."
Aug 5th 2023
EXTRACT: "I have a modest claim to make: we need Bruno today more than ever. This is because he represents an intellectual antidote to the prevailing ideology of today which tells us that we are doomed to finitude, which comes down politically to the assertion that there is no alternative to the reign of global capitalism. Of course, Bruno did not know about capitalism, globalization or neoliberalism. What he did know however is that humanity is infinite. That we are limited only by our own narrowness of vision."
Jul 26th 2023
EXTRACT: "We studied 55,000 people’s dietary data and linked what they ate or drank to five key measures: greenhouse gas emissions, land use, water use, water pollution and biodiversity loss. Our results are now published in Nature Food. We found that vegans have just 30% of the dietary environmental impact of high-meat eaters. The dietary data came from a major study into cancer and nutrition that has been tracking the same people (about 57,000 in total across the UK) for more than two decades."