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.
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.”