Emory Law Professor Denounces the Late Antonin Scalia as “Basically a Klansman”

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.”

The reason cited is his opinion he wrote in the 1987 case of McCleskey v. Kemp.

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. 28476 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.”

110 thoughts on “Emory Law Professor Denounces the Late Antonin Scalia as “Basically a Klansman””

  1. Hutchinson’s argument against Justice Scalia about being a “Klansmen” is an intellectually lazy diatribe from a racially bias incompetent law professor. There is no evidence what so ever that Justice Scalia was a “Klansmen” or even remotely racially biased in any of his judicial rulings. Yet Hutchinson slanders a deceased man’s reputation with pure conjecture based on his limited understanding of utter nonsence. Unfortunately, this is the state of (so called) higher education in this modern day. Professors of extremely skeptical intelligence instilling sheer nonsense into ignorant young minds as hard, and true fact.

  2. Professor: this has got to he the 100th piece you’ve penned about these fascist fools. Please stop acting surprised that they are fascist fools. The dream of JFK is over, for good.

  3. Hutchinson . . . “is the Emory University School of Law inaugural John Lewis Chair for Civil Rights and Social Justice. . . . 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.

    Those left-wing buzz words are about all you really need to know about this woke faculty member. He is a died-in-the-wool hard leftist. Therefore, of course he’s going to disparage and defame anyone to the right of Fidel Castro, even of the object of his insults is far more accomplished than he.

    1. If it’s OK for him to call Mr. Justice Scalia a “klansman” then, seriously, he has to acknowledge that it’s OK to call him any number of unflattering things that we restrain ourselves from saying. And there’s not going to be any “social justice” so long as people like him–presumably seeking to be accepted as equal in polite society–keep spewing such awful stuff. Mr. Justice Scalia, btw, was one of the 4 or 5 finest legal scholars to sit on the Court in the last hundred years.

      1. You got that right. He was an intellectual giant. If any of the intellectual midgets who attack him in live and death ever had to actually debate him in person, they’d get crushed. They can throw insults from a distance, but that’s about all they can do.

    2. It also shows the immense depth of how Emory University has fallen in the academics of medicine and law. The decline of Emory has been quite noticeable for some years now.

      1. You are exactly right. I have two of their degrees and told them to stop calling me for money and I refused to let my kids apply.

      1. UGA is ranked 29th in the nation. Emory is Tied for 30th. They are both supposed to be excellent law schools.

        40 years ago Emory was regarded as “The Harvard of the South”

      2. Being a professor at a Top law school – even being one of the most brilliant law professors in the country is unfortunately no Bar to saying stupid things.

        Prof. Tribe has written an excellent text on Constitutional law, is the Legal Lion of the Left.

        And on Twitter constantly spews total legal nonsense


    “Emory Law Professor Denounces the Late Antonin Scalia as ‘Basically a Klansman’”

    – Professor Turley

    And Darren Hutchinson and his ancestors were not even allowed to be in the United States by extant law.

    Immigration law, the Naturalization Act of 1802, was in full force and effect on January 1, 1863.

    The 14th Amendment et al. were improperly ratified with a gun to America’s head.

    The 14th Amendment must have been moot and incoherent by exercise of law, and after the enforcement of extant law, the Naturalization Act of 1802, on January 1, 1863.

    Exactly which laws does America uphold, enforce and adhere to?

    Naturalization Act of 1802

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof of…

  5. Jonathan: What else is in the news? Wow, a lot! At the risk of being criticized for changing the topic here are some of the lead stories:

    1. George Santos is in a lot of trouble. He is wanted by police authorities in Brazil for questioning. And the NY GOP is demanding he resign. And it now appears Santos accepted campaign contributions from a human trafficker and foreign national. What is the House GOP response to all the charges that keep piling up against Santos? They are gutting the Office of Congressional Ethics! That’s why George Santos is the poster child for what is wrong with the GOP.

    2. Ignoring the growing Santos scandal, the GOP is pushing ahead with its agenda. It is demanding significant concessions over raising the debt limit. It wants drastic cuts to Medicare and Social Security. That will play well with the 56 million seniors–who also vote!

    3. Speaker McCarthy, as part of the concessions he made to the far-right of his party, is setting up a special select committee to investigate what is called the “weaponization” of the DOJ/FBI against Donald Trump. And who wants to be on that committee? Rep. Scott Perry who supported the insurrection on Jan. 6. The FBI seized Perry’s cell phone as part of the probe into his participation. Perry introduced Trump to Jeffrey Clark who Perry wanted installed as acting AG to try to prove all the election “fraud” they could prove in court. Perry also sought an advance pardon from Trump over his participation. “Guilty mind”? You betcha! So the guy who is being investigated by the DOJ wants to turn the tables and “investigate” the accusers. It’s like putting the fox in charge of the chicken coop! A truly strong Speaker would kick Perry off the committee for being utterly compromised. But we all know where all the power lies.

    So, rather than dealing with important issues like out-of-control inflation that is eating into the pockets of American households, addressing the crumbling infrastructure or trying to address the devastating effects of global warming, the House GOP MAGA supporters are out to prove Trump was really right all along. You could not ask for a better scenario for the Dems. Stand back and let the House Republicans self-destruct and look forward to 2024 to make the GOP majority in the House the shortest in history!

    1. more imprtant than Santos (who should be booted and never should have been running as an R but fo the fact he was a homosexual) is Pinocchio Joe’s crime of classified documents being held in various locations that the leftist dems and media are trying to cover up. As Vp he had absolutely NO authority to have possession, Trump as POTUS arguably had the authority to declassify his.

  6. Meanwhile up in Heaven…

    Justice Antonin Scalia: “The caliber of some professors these days is an embarassment. Everyone’s a klansman to some of them.”

    Justice Hugo Black: “Look…down there…Squirrel.”

  7. The police officer who was murdered by this gentleman and his friends was Frank Schlatt, only 30 years old, and a five year veteran of the police force. He was married and had a young daughter. His picture can be found here: https://digitalcollections. library.gsu.edu /digital/ collection/ ajc/id/2206/ It’s notable how the appellate opinions and articles about the case merely identify him as a “white police officer.” To modern sensibilities, that is all that matters.

  8. Jonathan: Antonin Scalia us not alive to defend himself but you have jumped in to do the job of defending his legacy. You call Prof. Hutchinson’s description of Scalia “disgraceful”, “breathtakingly off-base”, “character assassination” , etc. In this “age of rage”, as you call it, such hyperbole doesn’t add to a very enlightened analysis of Scalia’s views on and off the Court. So permit me to weigh in.

    The Q is not whether Scalia was a member of the KKK but whether he often expressed racist views. He was an outspoken opponent of affirmation action programs and the Voting Rights Act which he called the “perpetuation of racial entitlement”. (See his opinion in Shelby County v. Holder). In oral arguments in a 2015 case challenging affirmative action, Scalia impugned the capacity of Black college students to do well at prestigious white universities, suggesting they might do better at a “slower-tract school”. Scalia was widely condemned for his comments. Senate Minority Leader Harry Reid said at the time: “It is deeply disturbing to hear a Supreme Court Justice endorse racist ideas from the bench of the nation’s highest court”. When Ronald Reagan nominated Scalia to the Court he had a purpose–to turn back the clock on civil rights. Scalia did not disappoint in his decisions and public statements. In an obit in the Washington Post (2/13/16) Robert Barnes said of Scalia’s legacy:

    “Justice Scalia was an outspoken opponent of abortion, affirmative action and what he termed the ‘so-called homosexual agenda’, and his
    intellectual rigor, flamboyant style and eagerness to debate his detractors energized conservative law students, professors and intellectuals
    who felt outnumbered by liberals in their chosen professions”.

    I think Barnes aptly describes your current predicament–continuing to complain about how conservatives are a vanishing minority on university campuses– and why, as a Scalia acolyte, you bristle at any criticism of him. You long for the day when Scalia would speak out on the Court in support of your conservative ideas. So you recoil when a Black law professor calls a spade a spade. Scalia was an open racist and homophobe and was the intellectual precursor to the takeover of the Court by the right-wing politicized majority of the Court. How could we conclude otherwise?

    1. -That you constantly (I do mean, daily) criticize Professor Turley for his posts–particularly when you believe he is being partial to “conservative” views, -tells me that you lack exactly the qualities/traits that have made him so popular and followed, globally no less. -Those qualities/traits importantly include the ability to call out/be critical of positions or views that would be wholly inimical to his stated affiliation with, and self-identification as, a Democrat. That’s why, on a rainy day like today (make that, rainy week…) I can goof off and sit around, catching up on the good professor’s posts and the diverse commentary that follows, truly a pleasure.

    2. Please admit to trolling or having a severe brain injury.

      Being against affirmative (sic) action and VRA is exactly what a person who is not a racist would do. How difficult is this, people? c’mon, man.

      Being an anti-racist, like being in anti-fa is exactly the opposite of what the names imply.

      It is getting boring hear the same tired arguments over and over again about how not being a racist is racist.

      Let’s hope the libtards that mention this garbage are trolling and not really a f’ing stupid as they sound.

      1. Yes, exactly! and abortion affects the “black” community disproportionately. If they keep it up they may convert me to be pro-abortion as leftists are the ones being eliminated. Not that I could ever accept the mass slaughter of babies of any race.

    3. Dennis – someone else who opposed affirmative action was Sen. Hubert H. Humphrey, one of the sponsors of the 1964 Civil Rights Act. When critics suggested that the law would lead to racial preferences, he dismissed such fears. “Democratic Senator Hubert Humphrey, explicitly stated that the bill forbade quotas in any form in favor or any group. Humphrey declared that the bill ‘would prohibit preferential treatment for any particular group’ and added: ‘Do you want a society that is nothing but an endless power struggle among organized groups?’ Humphrey asked. ‘Do you want a society where there is no place for the individual? I don’t.’ He then famously quipped: ‘I will eat my hat if this leads to racial quotas.’ https://ifamnews.com/en/it-is-time-for-senator-humphrey-to-eat-his-hat I guess HHH was also a secret member of the KKK.

      1. OMG!!!

        “…someone else who opposed affirmative action was Sen. Hubert H. Humphrey, one of the sponsors of the 1964 Civil Rights Act.”

        – edwardmahl

        The ridiculously absurd and wholly unconstitutional 1964 Civil Rights Act is “fake,” illicit, illegal, illegitimate, incoherent, antithetical and, as was just written, wholly unconstitutional.

        Equity is the essence of the American thesis and the Constitution.

        Equity is the COMPLETE ABSENCE of bias and favoritism.

        The Constitution guarantees NO success, merely the freedom to engage in “the pursuit of happiness.”

        The Constitution guarantees NO popularity, merely the freedom to engage in “the pursuit of happiness.”

        Dang, people, nay, comrades!!!

        Freedom and Self-Reliance constitute the inviolable and immutable American thesis.

        Dictatorship is the communist imperative.

      2. Merriam-Webster


        eq·​ui·​ty ˈe-kwə-tē 
        plural equities

        1 a : justice according to natural law or right

        specifically : freedom from bias or favoritism

  9. Professor Turley,

    Professor Hutchinson’s comment was made in reference to Scalia’s memo to the other justices explaining why he would not vote to reverse the sentence, even if the study proved discrimination. Therefore, his comment was not simply based on his vote in the case. According to Hutchinson’s tweet, the memo included among other things the following: “Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury deliberations 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.”

    Therefore, your conclusion that Professor Hutchinson must view all other justices as Klansman, as well, does not make sense (unless they additionally supported Scalia’s beliefs in this memo).

    While I personally would not draw the same, sensationalist conclusion, I think it is concerning that Scalia views racism in jury deliberations and prosecutorial decisions as “ineradicable” and therefore not something, which should factor into the proper administration of justice. This seems deeply at odds with Batson v. Kentucky, the (also) 1986 case which prohibits prosecutors’ racially motivated decisions to eliminate a potential juror during jury selection.

    This issue recently resurfaced with Flowers v. Mississippi. There is a great podcast called “In the Dark” by the way, which is a nice overview of how a racist prosecutor can rob an innocent black defendant of his entire life. Curtis Flowers was tried six times for the same murders, and each time the convictions were overturned due to prosecutorial misconduct (including Batson violations). Highly recommend.

    Further, this lesson is part of Mr. Hutchison’s CRT class. Due to the GOP censorship, the professor could not even teach this class at a public Florida law school due to DeSantis’ Stop Woke Act. If you truly cared about students having an opportunity to “voice their view,” then you would adamantly oppose the GOP state censorship efforts in Florida. DeSantis’ takeover of the New College Board of Trustees is another article regarding academic freedom, which you have ignored up to this point.

    Tweet embedded in: https://www.thecollegefix.com/scalia-was-basically-a-klansman-emory-law-professor/

    1. Hutchinson is simply a clown trying to get attention in a broad and shallow field of attention whores all trying to cash-in on the current fad of being a racist.

      He is a stuffed shirt, clown.

    2. Anonymous: +1000! You have once again have offered an illuminated perspective on the Hutchinson/ Scalia controversy. Too bad Prof. Turley probably doesn’t pay more attention. Thx for your contribution to the discussion.

    3. This seems deeply at odds with Batson v. Kentucky, the . . . case which prohibits prosecutors’ racially motivated decisions to eliminate a potential juror during jury selection.

      I’m not seeing how the two are at deeply at odds. If a prosecutor makes an apparently race-based peremptory, it can be challenged and the parties can deal with it right then and there: the prosecutor has the burden of supplying a race-neutral reason. This all occurs during void dire, before the trial starts. The whole point of a Batson challenge is that the defense counsel is accusing the prosecutor of a race-based peremptory, and as noted the issue can be dealt with before trial starts.

      Justice Scalia’s point was that if there’s racism, its unconscious, meaning not consciously known, and furthermore it only manifests after the trial is over and the jury has rendered its verdict. That being the case, there’s no equivalent to a Batson challenge. What is defense counsel going to do, poll the jury with the question of whether their guilty verdict was motivated by unconscious racism? The question answers itself.

      Perhaps I’m overlooking something and there is a viable procedure. If so, kindly explain what it is.

      1. I am not sure I understand your point. If Scalia does not believe evidence of prosecutorial misconduct based on race that is specific to the case (rather than generally evident in a jurisdiction’s justice system) is sufficient to overturn a conviction, then how could he support a Batson violation, in which a conviction can be overturned due to a prosecutor’s preference to strike jurors based on their race?

        If your whole point is that a Batson challenge occurs before a trial starts, that is only partially true. If the court improperly denies a Batson challenge, that may be grounds for a reversal of the judgment of conviction on appeal, and could result in a new trial. Please look at the Flowers case. It is that scenario to which I was referring.

        Thus, a finding of a Batson violation, whether it is remedied before or after the trial begins, is evidence of a prosecutor’s racial bias, whether conscious or unconscious. If Scalia believed such biases are ineradicable and not something for which a defendant should have an appropriate remedy, then Scalia would seemingly take issue with the Batson case.

        Let me know if I misunderstood your point. (By the way, I appreciate your civil response, in contrast to others on this blog.)

        1. So what we know is that Justice Scalia (who was not on the Court that decided Batson) agreed in the memo that unconscious bias exists, so he doesn’t need more evidence to convince him. He also joined the majority opinion in McClesky, which refused to overturn a specific death sentence based on a generalized study concerning bias in cases in general (a study which courts have not accepted as methodologically sound, or otherwise constituting a valid basis for judicial decision-making). In Flowers, the Court majority (which did not include Scalia) ruled that after six trials with virtually all African Americans having been struck by the prosecutor, the Batson problem in that specific case warranted a new trial. So . . . where is the inconsistency? And again, what courtroom procedure, as a counterpart to a Batson challenge, could possibly be used in specific cases vis-a-vis a claim of unconscious societal bias?

          P.S. I also appreciate your civil tone 🙂

          1. The issue is not “societal bias” but particularized bias. That’s the disconnect here. Please read the tweet embedded in the College Fix link I sent in the original post.

            The issue is Scalia went further than McClesky in arguing that specific (as opposed to societal) bias is insufficient grounds for overturning a conviction on procedural grounds.

            Batson is an example of how particularized racial bias can result in a new trial for a defendant.

            1. When you mention the tweet embedded in the College Fix link, I assume you’re referring to the content of the memo, as it appears to be reproduced on Hutchinson’s FB page. If so, here is what it says: I plan to join Lewis’s opinion in this case, with two reservations. I disagree with the argument that the inferences that can be drawn from the Baldus study are weakened by the fact that each jury and each trial is unique, or by the large number of variables at issue. And I do not share the view, implicit in the opinion, that an effect of racial factors upon sentencing, if it could only be shown by sufficiently strong statistical evidence, would require reversal. Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury deliberations 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.

              If that is the tweet you’re referring to (perhaps it is not), I do not see this language as referencing particularized bias detectable specific cases, as with Batson challenges. That is because he’s talking about the possibility of “statistical evidence” reflecting the “effect of racial factors upon sentencing.” Statistical evidence by definition uses a large enough sample size to be statistically significant, and it is not focused on revealing racial bias in a specific case.

              So . . . do I misunderstand your point (a distinct possibility)? And . . . what type of trial-level procedure could detect and cure sentencing bias, that is to say, bias by juries in deciding whether to impose or recommend, depending on the state, a death sentence versus life imprisonment?

              1. How do you interpret the first point he makes, namely that he disagrees with the argument that inferences from the study are weakened by the uniqueness of each trial/jury? To me (and I imagine Hutchinson) this means that he disagrees with the Court’s main argument in the case that essentially boils down to “correlation does not imply causation.” If Scalia disagreed with the point that generalized bias is insufficient because each trial/jury is unique, then the inference Hutchinson makes here is that Scalia must believe that statistical evidence, even when used to bolster a case for particularized bias, is not adequate.

                While I understand your hesitation to view the second point as particularized bias, statistical evidence can be used to support a Batson challenge to show particularized bias. For example, the demographic statistics in a jurisdiction are absolutely relevant to proving particularized bias in a Batson challenge, so I disagree with your claim that Scalia’s reference to statistical evidence requires one to view his point as solely addressing generalized (rather than specific) bias.

                1. . . . statistical evidence can be used to support a Batson challenge to show particularized bias.

                  This is an interesting point. Can you give me an example of how this could be done? With a Batson challenge the parties during voir dire are dealing with a jury pool, so can the demographics of the jurisdiction as a whole be used to support a Batson challenge, as opposed to the demographics of the jury pool. If so, how?

                  Second – even assuming you’re right that general statistics about the jurisdiction can be used to support a Batson challenge – how could statistics about convictions be used in a particular case where a jury has already rendered a verdict (I’ve asked this a few times now)? I don’t think jurors can be polled as to whether they convicted based on racism. Polling the jury is confined to whether they agree with the verdict; I don’t believe defense counsel is allowed to ask about their internal deliberations or subjective reasons why they found the defendant guilty. Or perhaps you are saying they can be polled about such matters? If not, then it seems you’re referring to an appeal with a request for a new trial, right? So . . . isn’t Scalia right that that type of claim could not be supported with statistics due to the individualized nature of each case? If not, then how would statistics be used in making such a request?

                  1. I am pretty sure that SCOTUS has already ruled not only regarding Batson but on other issues that Statistical evidence is admissible, but it is NOT sufficient.

                  2. Example: Defense counsel can use a prosecutor’s past Batson justifications. For example, if the prosecutor has previously justified challenged strikes by noting that the panelist lives in an objectionable neighborhood, a skilled defense counsel would pull data about the demographic composition of neighborhoods identified in past strikes in preparation for a possible argument that such a justification serves as a proxy for race and is not race-neutral. Attorneys can also pull data about the demographic composition of the neighborhoods of Black venire members in the present case.

                    And to address your second question, I suppose a post-conviction Batson challenge could use sentencing data, stratified by race, from the prosecutor, comparing it to sentencing data from all prosecutors in a jurisdiction, to make a similar argument to the above, namely that this particular prosecutor has a predisposition to seek capital punishment for black defendants, and that this particular case, is no different from white defendants, for whom the prosecutor sought more lenient sentencing.

                    Full disclosure – I understand there is a high bar for the success of Batson challenges, but for the purposes of this discussion, I don’t think we are taking into account success on the merits in trying to understand Scalia.

                    1. Sorry – The second hypo would not be a Batson challenge, more of a Sixth Amendment argument, based on prosecutorial misconduct. See, for example, State v. Monday in Washington.

                    2. It would certainly be a creative argument by a defense attorney. I don’t know if statistics alone would be sufficient, so (as John Say points out) the claim would have to combine statistics with some other kind of evidence. Do you know if this type of claim – combining statistics with other evidence of racial bias to obtain a new trial – has been made to any appellate court in the nation, state or federal, and how the court ruled on it?

                    3. There are plenty of cases in which SCOTUS has found racial discrimination.
                      There are none, where statistics alone were sufficient evidence.

    4. You are not making your case. Hutchinson’s comment went over the top in accusing a dead man of racism. He was not a racist, but that is how you and the left argue. Accuse everyone of racism to shut them up. That is despicable, ATS.

      Take note of what was said at your link: “Hutchinson made his Twitter account private this morning after publication of Turley’s blog. The College Fix archived his Facebook status (below).”

      Hutchinson ran away,
      His Twitter account is now private
      and the embedded material was his archived Facebook status.

      You are not doing too well today.

      1. If you reread my comment, I never accused Scalia of being racist… I even noted that I would not draw the same sensationalist conclusion that Hutchison draws.

        So I am not sure why you are suggesting otherwise?

        1. Hutchinson did and you were arguing in favor of Hutchinson’s libel of a dead man. You have significant racist tendencies even though you try to hide them under the names of others, Hutchinson in this case or under your anonymous name. I’ll provide proof.

          Do you support character over color (MLK) or color over character? Based on the positions you take, one can appropriately call you a racist.

          1. I was not arguing in favor of Hutchinson calling Scalia a Klan member…. Please re-read the comment. Nowhere did I validate the Klansman comparison.

            Rather, I questioned the conclusion Professor Turley drew from Hutchinson’s tweet, namely that Hutchison must view each other Justice who voted the same as Scalia as a Klan member, because Hutchison was referencing Scalia’s memo rather than his vote on the case. Prof. Turley conveniently left the memo out of his blog post.

            I then argued that Scalia’s view in the memo, namely that a specific finding on racial bias in the case would not be sufficient to vote differently, “concerning” because it would mean that specific findings of racist prosecutorial misconduct would not be grounds for a defendant to have a legal remedy.

            Do you truly believe either of these points translates to “arguing in favor of Hutchison’s libel of a dead man”?

            1. I made it simple for you.

              Do you support character over color (MLK) or color over character? Based on the positions you take, one can appropriately call you a racist.

              Your non-answer tells us all we need to know. You are a leftist so choosing one over the other aloud is like taking poison.

              1. I assume your non-answer of the above question (which was the one actually related to the original post) is acknowledgment that you had no basis to conclude that I argued in favor of Hutchinson’s Klan comment.

                As for your tangential question, of course I support King’s dream of a nation in which children are judged by the content of their character. That is one of the reasons, I chose, as a registered Republican, to vote for the second time in my life for a Democratic presidential candidate instead of the candidate (Trump of course) who says things like “Laziness is a trait in blacks.”


                1. Sounds like an anonymous pretend friend (ATS). You couldn’t answer the question honestly so you created a new anonymous identity.

    1. Do you have evidence of any of that? Or, are you just assuming that he couldn’t perform academically based on the color of his skin?

  10. Professor Darren Hutchinson made himself and Emory Law School sound like a joke with his comment, Scalia “was basically a Klansman.” Notable is he is Emory’s chief diversity officer and teaches CRT. I think we have enough of this type of character assassination, and in a moral world he should be dismissed.

  11. It’s certainly reasonable to question whether the death penalty should be invoked. Further it’s even appropriate to question whether racism had any impact on the case and/or sentencing. However, deriving the false assertion that reasonable and rational conclusions with which you disagree somehow make an individual a Klansman is not only farcical, but insane. This “professor” should be censored and has no business teaching young, impressionable minds.

    1. Democrats have not had trouble with real Klansmen. They nominated and revered Justice Hugo Black. They made Robert Byrd their leader in the Senate. (Incidentally, he voted against Clarence Thomas.) We could go further and mention President Wilson, who introduced racial segregation in the federal workforce, or FDR, who opposed anti-lynching laws, or Adlai Stevenson, who picked a segregationist to be his vice-presidential candidate. Nowadays the Democrats know no higher form of invective than to call others racists.

  12. Are our leaders are more nasty, or are they trolling for “likes” and they forgot who their audience was?
    Off the wall insults like calling someone a Klansman certainly makes that case

  13. Darren Hutchinson is an idiot. Anyone who has studied Justice Scalia’s writings knows he was no ideologue but was instead a Justice who believed that the words actually written in the Constitution, and those left out are the only reliable guides to its meaning. In my mind, he was one of the most intelligent and thoughtful justices ever to serve on the High Court. Over the years, I disagreed with some of his opinions but they were so well reasoned, I rarely could figure out why. Apparently he also was a really nice man as evidenced by Justice Ginsburg’s close friendship with him. As Justice Ginsburg said when he died, “It was my great good fortune to have known him as a working colleague and treasured friend.” I wonder what she would have said about Hutchinson on hearing him associate Justice Scalia with the KKK.

    1. This is not true. He selectively used different approaches, including textualism or originalism (and sometimes neither), whenever it suited him. In fact, he even called himself a “faint-hearted originalist” to dismiss his lack of adherence to it.

      Scalia is willing to ignore the original meaning of those portions of the Constitution that are rendered dead by nonoriginalist justices, and more generally, he is willing to abandon originalist results when he finds them too onerous.

      1. “whenever it suited him.”

        ATS, you are trying to mind read again and you are bad at it.

        If you wish to make such claims, spell them out and prove them. Hutchinson libeled a dead man and was smart enough to close his Twitter account to the public. You should learn to be at least that smart.

        1. https://www.google.com/amp/s/www.nytimes.com/2016/02/14/us/antonin-scalia-death.amp.html

          There is plenty out there on Scalia’s “faint-hearted” originalism. He used this whenever originalism led to an extreme position. Much like any “ism”, of course there are extremes that should not followed, but Scalia never articulated when he would reject originalism for another tool of constitutional interpretation.

          My con law professor always referred to textualism, originalism, and other interpretive methods as tools that justices (including the liberals) would pick and choose to arrive at their desired outcome. Scalia, while better than most, was the one who continually professed to not allow political beliefs to influence his opinions. We must therefore judge him against his own self-imposed higher standard.

          I came into law school thinking I would really like Scalia, but when I found out he was just like every other jurist, it was really disheartening.

          1. You are posting under an anonymous name saying you are an attorney. ATS is not an attorney, but ATS lies and uses multiple identities so one could assume you are one of the many identities of ATS or one of his pretend friends. You can solve that problem by adopting a specific icon and name. In that way one can separate the two even if they are the same. It leads to an easier discussion.

            I have no problem with one who doesn’t agree with Scalia, but he is one of nicest people I have met and certainly one of the most intelligent. Consistency is sometimes a matter of perspective but a lot academics use the accusation of a lack of consistency, to prove a case that intellectually they are not capable of making.


    Was that patriot and actual American also a member of the NAACP?

    Immigration law of 1802 was in full force and effect on January 1, 1863.

    The 14th Amendment was moot and not possible after execution of the Naturalization Act of 1802 on January 1, 1863.

    Did Abraham Lincoln posses the power to pick and choose the laws he enjoyed, supported and enforced, and deny others?

    Naturalization Act of 1802

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof of…

  15. I am compelled to observe (based on this man’s web page) that he, like some who check all the boxes for places in universities and jobs view the world and all those in it in terms of those boxes. Here, it isn’t the words of Justice Scalia, but the fact that he didn’t check a box for “black” or African-American. So … this man denigrates him on a personal basis. That’s what happens when a box-checker is employed for a short time as an attorney, a lawyer with a client – before moving on to clerk and, finally, to preach a social/political philosophy to law students, rather than educate them to practice law.

  16. Spoiler Alert: Penguin Random House to release new book, “How to Rewrite America’s Racial History and Sex/Gender Education,” recommended for K-12, by renowned Professors Darren Hutchinson and Laurence Tribunal, Justice Ketanji Brown Jackson, award-winning author of the 1619 Project, Nikole Hannah-Jones, and more!

    1. So many meat heads on the left are jealous of Anton’s intellect, in depth knowledge of the law, and ethics (especially his intellect).

  17. Hahahahaha. The posts these past few days have been great. A pompous “lovely” girl, a caterpiller lip with no sense of irony, a Never-Trumper comeuppance and now this, a law professor who gets his history and legal acument off a cereal box. JT has a million of them.

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