No sooner did Antonin Scalia roll some bigoted bile down his forked tongue than the right-wing propaganda machine started circulating its defensive talking points. Scalia, a Supreme Court justice who regularly employs anti-minority argumentation reminiscent of more fascistic times in more fascistic places, had this to say last Wednesday about a University of Texas affirmative-action program:
There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well. One of the briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them. I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.
This is a shocking thing for anyone to have said out loud, let alone a sitting justice on the high court. Scalia’s comment, we are told, was based on “research” done by two “scholars” who found that some minority students are so far behind coming out of high school that making them compete against the superstars who inhabit elite institutions is just unfair. Of course, if that’s the theory, it wasn’t accurately reflected by Scalia’s ugly rant – he didn’t say that black students shouldn’t have to compete against students who are better prepared than them; he said that they shouldn’t be in classes that “are too fast for them.” You know – classes that require the kind of mental agility that only … ahem.
Conservative outlets and the mainstream media have all but absolved Scalia of his racist guilt by circulating and recirculating the right-wing talking point that Scalia was just doing what judges do: probing for thoughtful input by posing a controversial but in-bounds question based on someone else’s ideas.
This ignores not only that Scalia said something different from the “scholars” he was allegedly channeling, but also Scalia’s longstanding habits and his obvious ownership of the drivel that spinsters now clumsily try to assign to others.
Scalia’s habit during any oral argument involving hot-button social issues is not to probe, but to advocate. When he hears oral argument in a gay-rights case, he is virulently anti-gay in 100% of his “questioning.” In affirmative-action cases, 100% of Scalia’s questions and comments will cut against affirmative action. In fact, when he is dissatisfied with the quality of the arguments proffered by lawyers for Scalia’s own preferred outcomes, Scalia will give those lawyers their arguments – or at least more skillfully reframe the arguments — from the bench. And when questioning lawyers on the wrong side of his ideological agendas, Scalia does not probe for their answers; he provides his own. So anyone who thinks that Scalia was not expressing his own worldview with his bizarre theory of ethnic academic sluggishness doesn’t know Scalia.
Note how Scalia started his statement: “There are those who contend …” This is a favorite trick of Fox News and their ilk: when confronting the exponent of an opposing view, the questioner, instead of just owning an argument that is vacuous and facile, will use the “Some would say” evasion. Consider Benghazi: Fox will have one of its own talking heads speculate that Hillary Clinton must have given a stand-down order to ensure the death of her own friend (Ambassador Stevens) and then, in a later segment, have an anchor say something like, “Some have said that Hillary Clinton gave a stand-down order.” In this way, the speaker has said something without taking responsibility for having said it. When Scalia said “There are those who contend,” what he meant was what Fox News means when its propagandists use the same ploy: “What I think is that …”
Scalia’s second sentence was more telling. Notice that when he got around to mentioning a legal brief (the one that the media now uses as his excuse), he didn’t say that the brief argued or contended or theorized; he said that it “pointed out that most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.” (Emphasis added.) So what do we mean when we say “pointed out”?
If I were to recount a conversation in which someone (let’s call him Bob) told me “grass is green,” I would probably recount it this way: “Bob pointed out that grass is green.” I would not say that “Bob argued that grass is green” or “Bob averred that grass is green” or “Bob contended that grass is green.” The reason I would use the words pointed out is that I consider grass is green to be a fact, not a hypothesis. I agree that grass is green, and I accept it without question, and that is why when Bob says it, I would think he is merely pointing it out. So Scalia wasn’t saying that the brief he cited was argumentative or persuasive; the language he used signaled that he thought it was true.
Finally, note how the media has ignored the last two sentences of Scalia’s little judicial gem: “I’m just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer.” Last I checked, I was a first-person pronoun used to refer to one’s self, and I’m was the contraction for I am. So one might surmise here that Scalia was speaking for himself when he said that, based on the reasons he had just laid out, maybe the University of Texas has too many black students, not too few. And that is all any reasonable person would need to hear before calling Scalia what he is: a racist and a bigot.