U.S. Supreme Court Justice Scalia finally couldn’t outrun the bear
Litigation - Article Series: from All-Creatures.org Articles Archive


Merritt Clifton, Animals24-7.org
February 2016

Death recalled favorite hunting story...Scalia often summarized his philosophy of legal argument with a hunting joke. “Two hunters are out in the woods in their tent and there’s growling in the brush near them,” Scalia would begin. “They open the tent flap and there is a huge grizzly bear and they start running. The guy who is a little heavier and running behind says, ‘It’s no use. We’re never going to outrun that bear.’ The guy who’s running in front says, ‘I don’t have to outrun the bear. I just have to outrun you!’”

Antonin Scalia

WASHINGTON D.C.––Perhaps the most avid hunter on the U.S. Supreme Court bench in decades, and certainly the most flamboyant, Justice Antonin Scalia died at the Cibolo Creek Ranch hunting resort in south Texas after a day of “hunting” box-reared quail during which he reportedly never fired a shot.

Not firing a gun on a hunt was unusual for Scalia, the longest-serving and reputedly most conservative U.S. Supreme Court Justice even when appointed by former U.S. President Ronald Reagan in 1986.

Often cited humane laws

Widely regarded within the animal advocacy community as the most “anti-animal” Supreme Court Justice, Scalia nonetheless frequently cited the existence of animal protection legislation in support of his view that the U.S. Constitution permits laws governing personal moral conduct.

One often cited example came in Scalia’s dissent in Romer v. Evans. The 1996 Romer v. Evans verdict struck down by a 6-3 margin a Colorado law passed by ballot initiative that prevented government agencies from enacting, adopting, or enforcing “any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships” might be invoked by anyone “to have or claim any minority status, quota preferences, protected status or claim of discrimination.”

Homosexuality & bestiality

Wrote Scalia, “Of course it is our moral heritage that one should not hate any human being or class of human beings. 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.”

Scalia’s perspective in Romer v. Evans, and many subsequent opinions and public remarks, has often been interpreted as equating homosexuality with bestiality. Scalia himself, however, disavowed that position.

Summarized David G. Savage of the Los Angeles Times of a December 2012 confrontation between Scalia and a gay student at Princeton University, “Scalia defended his past writings comparing laws against homosexuality to those prohibiting bestiality and murder, saying he was arguing that many laws are based on society’s moral feelings.

“Reduction to the absurd”

“If we cannot have moral feelings against homosexuality, can we have it against murder?” Scalia asked in response to a question. “Can we have it against other things? I don’t apologize for the things I raise.”
Continued Savage, “Scalia said he was not equating homosexual conduct with bestiality or murder. “It’s a form of argument that I thought you would have known, which is called the reduction to the absurd,” he said. “I’m surprised you aren’t persuaded.”

Ironically, the argument that Scalia had equated homosexual conduct with bestiality was also based on “reduction to the absurd.”

Church of Lukumi Babalu Aye

Though quick to argue that prohibiting cruelty to animals is a legitimate subject for legislation when that premise favored his side of a case, Scalia contended otherwise in two of the most prominent animal-related cases brought before the U.S. Supreme Court during his tenure.

In Church of Lukumi Babalu Aye, Inc. v. City of Hialeah 1993, the Supreme Court unanimously held that although governments do have the authority to enforce prohibitions on cruelty, the keeping of livestock, and violations of zoning, a set of six ordinances enacted in 1987 by the City of Hialeah, Florida were unconstitutional because they were adopted in specific response to the intention of the Church of the Lukumi Babalu Aye to build a temple where animals would be sacrificed, and were drafted in such a manner as to avoid affecting any other group or activity.

Farmers exempted

For instance, the Court majority opinion explained, farmers were specifically exempted from prohibitions on raising animals of certain types commonly sacrificed by members of the Church of the Lukumi Babalu Aye. Farmers were also specifically exempted from a prohibition on slaughtering animals outside of a licensed slaughterhouse.

Likewise, the Hialeah ordinances were tailored to have no effect on hunting, trapping, fishing, vivisection, or greyhound racing and training.
In effect, the Hialeah ordinances only prohibited “ritualistic animal sacrifice,” not similar deeds performed outside of a ceremonial context.

Thus, the U.S. Supreme Court found, the Hialeah ordinances violated the first clause of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Concurrence & partial dissent

Scalia agreed that the attempt of the City of Hialeah, Florida to prevent animal sacrifice violated the First Amendment.

However, Scalia added in a concurrence and partial dissent appended to the majority verdict, “This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria [a Caribbean religion centered on animal sacrifice], but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibit the free exercise” of religion. Nor, in my view, does it matter that a legislature consists entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.”

U.S. v. Stevens

Similarly, Scalia joined with the 8-1 Supreme Court majority that in May 2010 , in U.S. v. Stevens, struck down the 1999 Depiction of Animal Cruelty Act. Passed to prevent the distribution of so-called “crush videos,” in which animals are allegedly tortured and killed for the viewers’ sexual gratification, the Depiction of Animal Cruelty Act was replaced within months by Animal Crush Video Prohibition Act of 2010, which has so far held up.

Meanwhile, during the October 2009 Supreme Court hearings on the Depiction of Animal Cruelty Act, Scalia argued with apparent influence among his judicial peers that as regards First Amendment protection of freedom of speech and publication, “It’s not up to the government to decide what are people’s worst instincts.”

Pointing out that opponents of cruelty to animals make extensive use of videos showing extreme animal suffering in many different contexts, including fundraising, Scalia concluded that “People who like bull fighting, who like dog fighting, who like cock fighting … that side of the debate is entitled to make its point as forcefully as possible,” too.

Sonar vs. whales

Scalia rarely if ever sided with animal advocates in U.S. Supreme Court verdicts.

Notably, Scalia joined with Chief Justice John Roberts in a 6-3 November 2008 ruling that, as Associated Press summarized, “Military training trumps protecting whales,” in a case concerning U.S. Navy use of sonar in submarine-hunting exercises off the coast of southern California.

Scalia in March 2009 authored a 5-4 opinion affirming the contention of the George W. Bush administration that environmental and animal advocacy groups lack standing to sue the U.S. Forest to challenge land management policies that allegedly contradict federal law, unless the environmental and animal advocacy groups have material interests at risk.

Summarized Sara Goodman and Dan Berman of Greenwire, “Environmental groups had argued that they were personally affected because they were denied the chance to comment on certain Forest Service proposals, but Scalia said they did not show ‘concrete interest’ and so failed to sufficiently prove direct and explicit harm.”


The U.S. Supreme Court in January 2012 unanimously overturned a 2008 California law requiring slaughterhouses to immediately euthanize non-ambulatory livestock, two months after hearings during which Scalia “pointed to a provision in the Federal Meat Inspection Act that bars states from imposing requirements on slaughterhouses ‘in addition to’ those created by the federal law,” reported Robert Barnes of the Washington Post.
“I don’t know how you can get around the fact that this is an additional requirement,” Scalia said from the bench.

Justice James McReynolds was possibly the most notorious hunter ever to serve on the U.S. Supreme Court.

Known as probably the most avid hunter on the U.S. Supreme Court since the arch-bigot James Clark McReynolds, 1862-1946, who served on the SCOTUS bench from 1914 until 1941, Scalia ironically did not hunt until midlife.
During a February 2015 appearance with fellow U.S. Supreme Court Justice Ruth Bader Ginsburg, Robert Barnes of the Washington Post reported, “Scalia told how he became a hunter after being assigned as the justice responsible for the appeals court covering Texas, Mississippi and Louisiana,” in 1982. “He met some ‘good old boys’ very unlike anyone he knew growing up in Queens.”

“Now he’s taught Justice [Elena] Kagan,” interrupted Justice Ginsburg. “They started with birds, and she’s graduated to [hunting] Bambi.”

Justices Scalia and Ruth Bader Ginsburg rode an elephant together in India in 1994.

Initiated Justice Kagan

Garance Franke-Ruta had already described how Scalia and Kagan hunted together for The Atlantic in June 2013.

“Supreme Court Justice Elena Kagan bagged herself a deer on a hunting trip to Wyoming with Justice Antonin Scalia last fall,” Franke-Ruta began. “Despite finding themselves on opposite sides of major court decisions, the liberal Obama appointee and the conservative Reagan appointee have become hunting buddies since Kagan was confirmed in 2010 as the fourth woman in history to sit on the highest court in the land.”

“I shoot birds with him two or three times a year now,” Franke-Ruta recounted Kagan saying at a then-recent speaking appearance.

After four or five bird-shooting expeditions, Kagan continued, “He said to me, ‘It’s time for big game hunting.’ And we actually went out to Wyoming to shoot deer and antelope. And we did.”

“He’ll do anything if you take him hunting.”

Reported Lana Straub, Eva Ruth Moravec, Sari Horwitz, and Jerry Markon in a collectively written posthumous account of Scalia’s career, ‘‘Other than being with his family or in church, there’s no place he’d rather be than on a hunt,’’ said Houston lawyer Mark Lanier, who accompanied Scalia on hunting trips seeking wild boar, deer and even alligators. Lanier said he first learned of Scalia’s love for hunting through former Supreme Court Justice Sandra Day O’Connor. ‘He’ll do anything if you take him hunting,’ Lanier recalled O’Connor saying.”

Cibolo Creek Ranch

John Poindexter, the Texas industrialist who bought the Cibola Ranch in 1990 and renovated it into the high-end hunting preserve it is today, denied to media that he had invited Scalia to the ranch to lobby for anything in particular.

“Poindexter said he had met Scalia once before, briefly in Washington, when he was there with a sports group [believed to be a hunting organization] and the justice agreed to meet them,” reported Molly Hennessy-Fiske for the Los Angeles Times. “He said he invited Scalia to the ranch on the suggestion of a mutual friend, a lawyer, who came with Scalia. He declined to identify the lawyer or any of the other guests, except to say that they were ‘very substantial business people,’ but not big names in politics.”

“There is no political angle here,” said Poindexter, identified by other sources as a donor to Demcratic candidates and causes. “It was strictly a group of friends sympathetic to the justice’s views.”

Several of Scalia’s previous hunting expeditions had become politically controversial.

Recalled Hennessy-Fiske, “In 2001, he went on a pheasant hunting trip with the dean of a Kansas law school who was the lead attorney in two cases that were about to come before the Supreme Court. And in 2004, he went duck hunting with then-Vice President Dick Cheney—flying with him on a plane that served as Air Force 2—while the high court was considering a case that challenged the secrecy of an energy task force led by Cheney.”

On that occasion, shooting at a private preserve in southern Louisiana, Cheney and Scalia “each bagged the limit of three mallards and three teal,”

St. Mary Parish Sheriff David Naquin told J.E. Bourgoyne of the New Orleans Times-Picayune.

Justice Scalia’s hunting expeditions with former U.S. Vice President Dick Cheney were among both men’s most often caricatured exploits.

Gap in ethics rules

Reportedly all of the cases brought before the Supreme Court by Scala’s hunting companions were decided in their favor.

Wrote Scalia to The New York Times, “I do not think my impartiality could reasonably be questioned.”

Supreme Court Chief Justice William H. Rehnquist told U.S. Senators who asked for a ruling that the Supreme Court does not have any formal rules or policy governing recusal of Justices. Responded New York University law professor Stephen Gillers, “This has exposed a gap in the ethics rules. Scalia is the judge of his own case.”

Scalia often summarized his philosophy of legal argument with a hunting joke. “Two hunters are out in the woods in their tent and there’s growling in the brush near them,” Scalia would begin. “They open the tent flap and there is a huge grizzly bear and they start running. The guy who is a little heavier and running behind says, ‘It’s no use. We’re never going to outrun that bear.’ The guy who’s running in front says, ‘I don’t have to outrun the bear. I just have to outrun you!’”

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