Empathy For The Devil: How To Hate Scalia Without Dancing On His Grave

Like most Americans, you probably heard about Antonin Scalia’s death on the Internet. On Saturday, the 79-year-old Supreme Court justice suffered an alleged heart attack while on an annual quail-hunting trip. The Washington Post reported his passing in a breaking news tweet at at 5:39pm. The news so rapidly spread across social media that Scalia peaked as a search topic on Google Trends instantaneously: By 5:30, interest in the SCOTUS justice was up to a perfect 100 on the tracking service. In lay terms, that’s “break the Internet” level.

The character of the conversation that emerged on social media was deeply troubling—with liberals and conservatives immediately drawing lines in the sand. Scalia, who was a strict constructionist, was a tiebreaking conservative vote on a majority Republican SCOTUS; his departure from the bench leaves the court at a presumptive 4-4 split until his replacement is nominated.

Senator Ted Cruz used the moment to call for a Congressional filibuster of whomever President Obama chooses for the seat. “Justice Scalia was an American hero,” Cruz tweeted, before. “We owe it to him, & the Nation, for the Senate to ensure that the next President names his replacement.” The GOP presidential nominee would reaffirm that sentiment in the CBS Republican Debate that followed Saturday evening. “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans,” he warned.

If Cruz quickly made the death of a man he called a “legal giant” into a  stump speech, many on the opposite end of the aisle immediately began dancing on Scalia’s gave. On Twitter, many users advised him to “rot in hell.” One wrote, “Scalia is dead? Oh thank fuck.” Comedian Billy Eichner posted, “Bye Scalia is the new Bye Felicia.” The comment, a play on the popular saying in gay circles, was retweeted 865 times.

These cases were not isolated: My entire timeline was filled with users fist-bumping each other over the death of a man who had a wife and nine children. Facebook users celebrated by throwing parties. A friend of mine was even invited to a parade to toast his passing.

When it comes to Scalia’s death, it seems everyone is getting it wrong.


I won’t pretend that when I saw the announcement on my Facebook feed, I didn’t breathe a private sigh of relief. I did not like Antonin Scalia, and my dislike of him was deeper than just his conservative politics. As a justice of the Supreme Court, he repeatedly used his stated belief that we should honor the Constitution the way the Founding Fathers intended it to mock, disregard and consistently vote against the rights of LGBT people. This was a man who did not believe that I, as a queer person, was as deserving of rights or even as human as he was.

These sentiments repeatedly showed in his decisions as a justice. In 1996, Scalia wrote one of his famous opinions on Romer v. Texas, a Colorado case that ruled on whether gays qualified as a protected class under the Equal Protection Clause. In a 6-3 vote, SCOTUS voted that they did not.

“Of course, it is our moral heritage that one should not hate any human being or class of human beings,” Scalia argued. “But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct[.]”

In the same argument, Scalia would also argue that LGBT non-discrimination qualifies as “special treatment,” comparing same-sex partners to nothing more than “long time [roommates].”

After being appointed by Reagan in 1986, Scalia used the bench, even if he wouldn’t like to admit it, as his own pulpit for activism—against queer people, women’s rights, and the interests of people of color. During a recent hearing on affirmative action, Scalia argued that having diminished educational opportunities is actually good for black students, as they “benefit from a slower track.” He reasoned, “[M]ost of the black scientists in this country do not come from the most advanced schools.”

But even though Scalia fought a “thirty-year battle against social progress,” as a recent Onion headline put it, his death is not to be publicly celebrated, no matter how we might privately feel about it. One of the things that Antonin Scalia never understood about the marginalized people he continually ruled against is that lives inherently have dignity; that dignity deserves respect, whether the person in question is your mother, best friend, or most hated enemy. Life and death should be honored, even if Scalia himself should not.

Over the weekend, Daily Beast columnist James Poulos wrote on Twitter that “politics should not define our humanity,” and he’s absolutely correct. If Scalia repeatedly denied queer people humanity over the course of three decades, we should not make his same mistakes. Our human rights are important, but our empathy should also reflect the principles we preach.

This bucks the current consensus on the subject, but it shouldn’t have to.

How to respond to a public figure’s death was the subject of a memorable editorial from Glenn Greenwald, who concluded that the rules of “death etiquette” simply don’t apply to someone like Scalia. “This demand for respectful silence in the wake of a public figure’s death is not just misguided but dangerous,” Greenwald wrote. “That one should not speak ill of the dead is arguably appropriate when a private person dies, but it is wildly inappropriate for the death of a controversial public figure, particularly one who wielded significant influence and political power.”

Greenwald was responding to the swell of hagiography following the death of Margaret Thatcher, the conservative Prime Minister remembered with respectful fondness after her 2013 passing. “The world has lost one of the great champions of freedom and liberty, and America has lost a true friend,” President Barack Obama said. Her New York Times obituary described her so: “Margaret Thatcher, the ‘Iron Lady’ of British politics, who set her country on a rightward economic course, led it to victory in the Falklands war and helped guide the United States and the Soviet Union through the cold war’s difficult last years.”

He is right to criticize the way in which these tributes sanitize and whitewash the history of some of our most divisive politicians. In her terms as Prime Minister, Thatcher was no friend to queer Britons. In a 1987 speech, Margaret Thatcher channeled Anita Bryant by railing against the normalization of homosexuality in schools: “Children who need to be taught to respect traditional moral values are being taught that they have an inalienable right to be gay. All of those children are being cheated of a sound start in life—yes, cheated.”

However, Mr. Greenwald errs on one key point. Our choices are not merely between partying in the streets, as pro-Labour groups did following Thatcher’s death, and a respectful silence. We don’t have to pick between blindly revering someone who harmed millions and desecrating their grave. If death is complicated, our response should be more complex than unhelpful dichotomies. We can be honest about our feelings without being inhumane.

There’s an old saying attributed to Martin Luther King that applies here. “Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars,” he once said. “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate, only love can do that.”

How should one then speak of someone like Antonin Scalia, as his family and friends mourn his memory? We should do exactly as outlets like Mother Jones and Vice have done: Objectively analyze the painful legacy he leaves behind. If Scalia’s grieving widow and children, as well as his good friend and fellow justice Ruth Bader Ginsburg, deserve the right to grieve, we reserve the right to meaningfully reflect on what his role in public life meant to us—a eulogy that is as filled with sorrow for LGBT Americans as it is for his loved ones.

As much as it might feel cathartic to condemn Scalia to hell on our Twitter feeds, ultimately his actions and deeds are what will speak loudest.