In the age of rage, it often seems that the most rageful reign supreme. That appears to be the case of Emory law professor, Darren Hutchinson, who has claimed that the late Supreme Court Justice Antonin Scalia was “basically a Klansman.” The disgraceful attack was met by silence from most law professors despite the fact that Hutchinson’s support for the claim is breathtakingly off-base and would mean that a majority of the Court in 1986 were basically KKK members.
There are many who disagree with the judicial philosophy of Scalia or particularly rulings that he wrote in his storied career. That is all fair game and Scalia loved such debates.
However, Professor Hutchinson preferred character assassination rather than reasoned criticism of Scalia.
Scalia is, of course, not alive to defend himself so it should fall to the rest of us to step forward. (Indeed, the late Ruth Bader Ginsburg would have likely been one of those who would have defended her close friend, if she were alive).
Yet, the sad fact is that this type of ad hominem attack thrills many in academia while others are reluctant to speak out.
Hutchinson recounted on Twitter how he taught a difficult lesson at Emory Law School on how “Justice Scalia was basically a Klansman.”
That opinion was joined by four other justices (Powell, Rehnquist, White, O’Connor), who are also presumably klansmen under the logic of Professor Hutchinson.
Indeed, Scalia did not write the majority opinion, which was penned by Justice Lewis Powell. (Hutchinson notes that a memo from Scalia showed that accepted that there was discrimination in the system). Additionally, the appellate judges would also be de facto KKK members since they also rejected the argument.
The case involved an African-American defendant, Warren McCleskey, who was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, Georgia. His victim was white Atlanta Police Officer Frank Schlatt and the jury found that both the felony murder and the killing of a police officer were “aggravating circumstances” that justified the death penalty. In his habeas appeal, Hutchinson alleged that the capital sentencing process was administered in a racially discriminatory manner in violation of the Fourteenth Amendment. He based those arguments on the study of David C. Baldus, Charles Pulaski, and statistician George Woodworth known as the “Baldus study.”
The issue on appeal was whether a general finding of racism in the system was sufficient or whether a defendant must show evidence of racism in his actual case. Both felony murder and the killing of an officer are commonly used as aggravating circumstances in capital cases.
The United States for the Eleventh Circuit rejected this use of a statistical study without evidence that racism played a role in the specific case under review. The court actually assumed the accuracy of the report for the purposes of the appeal but found that statistics are
“insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis.”
Id. at 891. The Eleventh Circuit added:
“The Baldus approach . . . would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. . . . This approach ignores the realities. . . . There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion.”
The Supreme Court agreed. Powell wrote:
To evaluate McCleskey’s challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions, or that race was a factor in McCleskey’s particular case. [Footnote 29] Statistics, at most, may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra at 481 U. S. 315-318. The question “is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 476 U. S. 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
In dissent, Justice William Brennan maintained as did Justice Marshall in his dissent that “the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.” Justice Stevens offered a more limited dissent in calling for a remand to consider the study further. Blackmun also supported the use of the study as the basis for a reversal.
The case has long generated debate with many law professors disagreeing with the Court’s holding. However, one can disagree with the Eleventh Circuit and the Supreme Court without labeling such jurists as white robed racists.
It is also concerning that this is a reference to Hutchinson’s class. If the professor maintains that anyone supporting the decision is effectively a klansman, it is hard to see how students in his class would feel comfortable in voicing such a view. Indeed, such pedagogical positions may explain why 60 percent of students reportedly fear sharing their views in classes.
Hutchinson’s bio states that he “is the Emory University School of Law inaugural John Lewis Chair for Civil Rights and Social Justice. He joined the faculty on July 1, 2021. At Emory Law, Hutchinson serves as the faculty director of the Emory University Center for Civil Rights and Social Justice. He was also appointed to the role of director of community and inclusion and chief diversity officer for the law school in fall 2022.”
NB: In the Scalia memo to his colleagues in the case, the justice stated that “[s]ince 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 honestly say that all I need is more proof.”
I suggest a correction: I believe that the word “robbed” be changed to “robed” in the sentence: “However, one can disagree with the Eleventh Circuit and the Supreme Court without labeling such jurists as white robbed [sic] racists.”
Don’t forget ballot box stuffing.
“If the question is are the Democrats stealing votes in Philadelphia, my answer is, ‘Is the Pope Catholic?’ It’s a time-honored tradition,” Blagojevich emphasized. “Big Democrat-controlled cities like Chicago, my hometown, Philadelphia, to do precisely what they’re doing now I’ve never seen such a magnitude because this I think is an indication of just how widespread it is, how deep it is. And I don’t think it’s just confined to Philadelphia. My instincts, again coming out of Chicago Democratic politics, my instincts tell me it’s going on in Atlanta, it’s going on in Detroit, it’s going on in Milwaukee, it’s going on in Las Vegas. It’s like what Justice Powell said about pornography: You can’t define it, but you know when you see it. And coming out of the Democratic Chicago political establishment, I know how they operate. They control polling places, they stop votes when their candidate’s behind, and then in the wee hours of the morning, in the dark of night, the stealing starts.”
PS Actually he is wrong. It wasn’t Justice Powell who said that it was Justice Potter Stewart, and he said it about “obscenity” not “pornography”.
Just because one is educated does not make one intelligent.
In 50 years Scalia’s name and accomplishments will be celebrated while all of these lilliputians who attack him will be long forgotten.
More from the bizarro world of 21st century academia. They even think the world “field” is racist. SHM
https://www.washingtonexaminer.com/opinion/uscs-nonsensical-decision-to-declare-the-word-field-as-racist
Scalia died taking a kickback from the owner of a hunter’s lodge who Scalia ruled in favor of.
I think he was a political bad guy.
george227, another conspiracy theory. Please provide a link supporting your statement concerning a kickback to Judge Scalia. Otherwise you will be appropriately considered a conspiracy nut. The evidence is mounting. I’m sure that you have fellow travelers on this blog who will respond with a +100.
Okay, google this
what-did-we-learn-from-antonin-scalias-death
George227 – Your citation is to a web article by Jim Hightower, a prominent left-wing writer, on the website of the United Steel Workers. It asserts that John B. Poindexter, who invited Scalia to his ranch, along with 35 other prominent men, “won a favorable ruling from the Court in an age-discrimination case” in 2015. But further research shows: “[O]ne of J.B. Poindexter’s subsidiaries, the Mic Group, had recently been before the Supreme Court. Last Year, the High Court declined to grant cert in an appeal from an age discrimination ruling.” In other words, the “favorable ruling” was simply denial of cert., which is routine. Further, the invitation came a year after the denial of cert., so there was no possibility of influencing future action. And, since the vote on a denial of cert. is not revealed, Poindexter had no way of knowing how Scalia voted. https://www.findlaw.com/legalblogs/supreme-court/were-there-ethics-issue-behind-scalias-death/
It was payola.
Hold accountable the terribly misinformed who hired this racist as a professor of anything. Ignorant of his own greater ignorance and stuffed full of misinformation about his aggrieved life situation, this is a travesty and a tragedy rolled into one. Until we purge our institutions, (both private and public) of this sort of wrong-think, nothing will improve. We are on a trajectory of destruction of a culture and nation with nothing substantial, well-planned or workable to replace it and yet we sit back and watch it happening and tsk-tsk it.
Agreed. Don’t hate the playa hate the game.
A Black diversity hire in a new faculty position needing to prove he’s up for the job by trashing a well-known figure. But his actions are actually proof that the college made a terrible mistake and hired someone who is not only incompetent, but who lacks the confidence to make a coherent argument without name-calling or resorting to cheap stereotypes. He’s a loser, but will succeed by today’s woke academic standards.
Once again, Turley purports to quote someone without linking to the source so that readers can read the original in full.
Just swipe the phrase below, copy and paste it into google and you’ll get a ton of results. Took me all of two seconds.
Emory law professor, Darren Hutchinson, who has claimed that the late Supreme Court Justice Antonin Scalia was “basically a Klansman.”
I googled as you suggested and it appears from Facebook that Hutchinson’s main complaint that prompted his klansman remark is the contents of a memo that Scalia wrote to the other Justices about the pending majority opinion, not the opinion itself or the court of appeals opinion as JT suggests.
Uh-huh, all indicators are that Hutchinson agreed with the opinion and the memo comment was entirely unrelated.
I look forward to Hutchinson’s critiques of all the SCOTUS justices’ memos in the future, and your defense of his wisdom.
So says the one that provides links that do not back up what he says.
When all else fails, they call you names and attack your character…..
Being an Atlanta native and undergraduate of Emory University I feel somewhat qualified to comment on this case. The city was majority black since the early 1970’s with Maynard Jackson the first Black Mayor of Atlanta in 1973 and after previously being vice mayor and he had already made moves to change the police force and in fact had to appoint a black public safety commissioner Reginald Eaves to over see the the white chief of police, John Inman. Subsequently he had to fire Eaves because of charges of quota’s on police hiring and reverse discrimination. Eaves was also convicted on selling his vote on some rezoning issues. Jackson had to also request the Georgia Governor to send the state patrol to help patrol downtown Atlanta in the 1979-1981 era because of a murder rate that was the highest in the country. Atlanta had been a major convention site but when a prominent Ohio State Radiologist was murdered during a convention, conventions started going elsewhere. A definite big deal to the city and the business community. Then there were the child murders through the early 1980’s. So the scene in Atlanta at the time was very “unsettled”.
And then there is Emory. I am not unbiased here. I was there 1966-1970. In retrospect I should have gone to Georgia Tech or Univ of Ga. Would have saved over 50 % of tuition and received as good an education. The non-science liberal arts had already started down the ultra liberal / progressive rabbit hole by then and they were insufferable to many students. The sciences were still merit based and intact but what I hear more recently is not good but no definite data to go on. That was the lay of the land in the time of this murder and its consequences.
If the charges of racial bias had been made in the time prior to the 1970’s it might have carried more weight but not later. See “Murder in Coweta County”. 1948 was the first time in Georgia that a white man received the death penalty on the testimony of 2 black men. (He was executed). I read the book when first published because I knew the area very well since it was quite close to Southwest Atlanta where I grew up.
Sorry for the long post but now you have background to go with the legal discussion.
Also one additional fact. Every white man in Atlanta was not a racist and every black man was not an angel and vice versa. That should be obvious. Too many people at the time saw the South as just full of raving lunatics running around in white robes and hoods lynching people right and left. The reality was far different. The lunatics and klansman were there but there were huge numbers of people of all races trying to connect and build something better.
Frankly I agreed with justice Scalia. You have to judge each case specifically and by the merits themselves just like in medicine. If you have congestive heart failure, since you are a unique human being, your case is unique to you and it better be to your doctor. All other cases of CHF are similar in some respects and vastly different in others.
The main lunatic right now may be the Emory Law Professor. He reveals himself when he goes after Scalia when there were 4 other justices making this decision. And as Professor Turley pointed out it is easier and safer to attack the dead.
GEB—Great comment! I really appreciate your comments about Atlanta, and your assessment of the South. Hubby honestlawyermostly has deep family roots in Atlanta….born at Crawford Martin hospital, and raised, until age 12 in Capitol View neighborhood, playing in the West End Elementary Band. His uncle was an Atlanta policeman assigned to black neighborhoods.
Mayor Hartsfield was a cousin of my G-Grandpa Hartsfield’s….and although the mayor was not perfect, I’m proud of his contributions to Atlanta. I feel there would have been deeper racial problems without him.
We were fortunate to have met Mayor Jackson in the early 70’s, and really liked him.
For several years now, I have felt that most of those (Like Darren Hutchinson) who are behaving hysterically over today’s “racial injustices” that don’t exist, are either too young to have lived in the 1960’s or did live back then, but were inactive and apathetic. They now feel they’ve been left out, and missed all of the drama and history, so they’re stupidly creating their own, at the expense of the rest of us!
GEB………correction: Crawford Long Hospital, not “Martin”. Also, meant to say it’s too bad about Maynard Jackson’s tenure because he had such promise.
I was at GA Tech in 1977-1979 and I agree with your assessment of Atlanta. It was safe at the time – During the day. But the City was vacant after 5pm.
I was accosted several times on the streets of atlanta – but fortunately never by anyone armed or a real threat to me – even if they wanted to be.
There were plenty of students black and white in my classes, and there was no significant discrimination.
Except Scalia actually argued that you shouldn’t judge whether discrimination exists in each case. Even if there was discrimination, that would have been insufficient. See: https://www.thecollegefix.com/scalia-was-basically-a-klansman-emory-law-professor/
If there is one area where the Democratic left is superb, it is character assassination. They are, without question, character assassins par excellence.
OK, then Trump belongs with the Democrats?
I read somewhere an account of the oral argument in the case. Justice Powell asked about the underlying crime. He was told, accurately, the McClesky killed a police officer during the course of an armed robbery. That evidently sealed the deal for him.
One more snippet from the bizzaro world of academia, where they even think the word “field” is racist.
https://localtoday.news/ca/california-university-will-no-longer-use-the-word-field-for-racial-connotations-203264.html
Another bizarre and ridiculous statement from the Affirmative Action peanut gallery.
Pathetic!
Groucho and Chico Marx appear to be far more competent in legal matters than Yale Law grads like Hutchinson. Antonin Scalia would have agreed if for no other reason than their awesome humor
Estovir….Love it! IMO, Chico was the funniest of all the Marx’s.
Their brother Karl was such a sour puss……..and the least funny. 🙂
“. . . this use of a statistical study without evidence that racism played a role in the specific case under review.” (JT)
Statistics show that the most common men’s pant size is 34. What does that statistic prove about the pant size of any particular man? Nothing. See Shaquille O’Neal.
https://www.thecollegefix.com/scalia-was-basically-a-klansman-emory-law-professor/
Scalia would not have cared. He didn’t actually support Powell’s view. Even if discrimination was proved in this particular circumstance, he would not have changed his mind.
This is the problem when Professor Turley doesn’t provide links, so that we can check sources.
I wonder if Hutchinson, in this attempt to take down Scalia (an uber-cop), sees himself like the McClesky who took down the cop Schlatt?
One disgraceful attack begets another. Hutchinson appears nothing more than another CRT Little Tommy Tucker.
When your reputation and career are based on being outraged, it’s easy to find something to be outraged about in everything you see.
Prof. Turkey, thank you for raising this incident and providing a thorough, fact-based review of the case. That a law professor who is prominently representing Emory and civil rights, diversity, etc. makes such an outrageous claim without solid ground, damages the reputation of Hutchinson, Emory University, and, unfortunately, graduates of the law school who have been tainted by Hutchinson’s disgraceful comments.