Is Justice Scalia an "Irresponsible" Judge?

Justice Scalia tends to irritate many people when he visits law schools. Several years ago, a student at NYU Law School infamously (but cleverly) asked Justice Scalia whether he and his wife engaged in a particular sex act. Scalia predictably responded that this was a private matter. The student responded by noting the glaring disparity between Scalia's desire to keep his own sex life private and his rulings excluding sexual conduct from the right of privacy.

Now, a professor has gone after Scalia. It all began when Scalia, appearing at a conference on digital privacy, made comments dismissing privacy concerns related to web-based information as "silly." Scalia also downplayed complaints regarding Internet "tracking," arguing that "I don't find that particularly offensive . . . I don't find it a secret what I buy, unless it's shameful."

In response, Professor Joel Reidenberg, who teaches information privacy at Fordham Law School, required his students to compile information concerning Scalia. The 15-page report contains information regarding Scalia's "home address, the value of his home, his home phone number, the movies he likes, his food preferences, his wife's personal e-mail address, and 'photos of his lovely grandchildren.'"

Scalia, however, has responded in his normally caustic, yet witty, style:

I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private. I was referring, of course, to whether every single datum about my life deserves privacy protection in law.

It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any (boldface added).

Ouch.

Often, when I teach Scalia's opinions I find myself agreeing with his "social criticism" of the other justices. For example, he often accuses liberal justices of being driven by ideology or politics. Similarly, in his comments concerning Reidenberg, he accuses the professor of exercising "abominably poor judgment." I am always troubled, however, that Scalia never turns his blade inward to examine how his own jurisprudence responds to politics and personal ideology. In this moment, I cannot resist the opportunity to use Scalia's words to evaluate his own judging.

Scalia has made the unassailable point that what is "perfectly legal" can also represent "abominably poor judgment." Applying that logic to judicial opinions, one could argue that a Court ruling (or individual Justice's opinion) can contain completely sound logic and fall within the reasonable range of outcomes -- yet still demonstrate an abominable level of judicial irresponsibility. Although there are several moments where I would argue that Scalia acted irresponsibly, the following analysis details perhaps his worst moment of recklessness:

Race and the Death Penalty
McCleskey v. Kemp involved an Equal Protection and Due Process challenge to the Georgia death penalty. A statistical study demonstrated a strong racial pattern in the imposition of capital punishment in Georgia. The racial pattern that most likely resulted in a death sentence involved a black defendant and a white victim. The Court rejected the petitioner's claim, arguing that he had not proven that he had suffered discrimination (even if others potentially had) or that Georgia maintained the death penalty "because of" the racial pattern that emerged.

Justice Scalia voted with the majority. Even though he joined the majority opinion which held that insufficient evidence of racism existed, Scalia nevertheless wrote a memorandum to the other justices prior to the ruling in which he concedes that juries and prosecutors make decisions based on race. Scalia, however, said that the law could not remedy this (which is almost a direct quote from Plessy v. Ferguson):

Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.

I would rank this as one of the most egregious examples of judicial irresponsibility. For a Justice of the Supreme Court to concede the operation of jury or prosecutorial racial bias but then pretend that the court is incompetent to remedy the situation when a person's life hangs in the balance is horribly irresponsible.

Ironically, Justice Scalia does not believe that the Court is incompetent to remedy "racial discrimination" when he votes to invalidate affirmative action policies. Nevertheless, the Court cannot change the scenario when the government is, under his own admission, killing someone due in part to racial bias. Highly irresponsible.