Justice Antonin Scalia rails again about flag-burning “weirdoes”

November 12, 2015 by Scott Bomboy

Supreme Court Justice Antonin Scalia was in Philadelphia last night, making remarks about the Court, a controversial flag-burning ruling from 1989, and diversity among his fellow Justices.

Scalia appeared at a Union League in an event moderated by Princeton University’s Robert George, and as usual, the Justice made comments about the original meaning of the Constitution. And according to reports from the event, Scalia also talked the historic Texas v. Johnson flag-burning decision, which is still debated to this day.

Scalia said as a jurist who believes in a pure texualist reading of the Constitution, he has made some tough calls in his career, especially in free-speech cases where his vote went against his personal principles.

"If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag," Scalia said. "But I am not king."

Scalia made similar comments at a March 2014 appearance in Brooklyn, where he called Gregory Lee Johnson, who brought the 1989 flag-burning lawsuit, a "bearded weirdo." (He made similar comments at a 2012 appearance in Wyoming, a 2005 appearance at the University of Michigan event and in 2004 at a William and Mary event.)

Back in 1989, Scalia was the fifth and deciding vote in the Texas v. Johnson decision that upheld flag burning in Texas, and a year later, he voted against a federal law that banned flag burning in United States v. Eichman.

In protest of President Ronald Reagan’s administrative policies, Gregory Lee Johnson burned a flag outside the City Hall building in Dallas, Texas, in 1984. Many onlookers said the scene was deeply offensive, a sentiment that represented the popular majority’s view on the matter.

Texas arrested Johnson and convicted him of breaking a state law that prohibited desecration of the flag of the United States. Johnson was sentenced to one year in prison and ordered to pay a $2,000 fine. Johnson won an appeal in Texas, and the Supreme Court took the case.

In a very unusual majority, the Court voted 5-4 in favor of Johnson. Johnson’s actions, the majority argued, were symbolic speech political in nature and could be expressed even at the affront of those who disagreed with him. Justices Scalia and Anthony Kennedy upheld flag burning.

Scalia, who is well-known for writing opinions, concurrences and dissents, did not write on his own in the Johnson and Eichman decisions.

At Wednesday’s Philadelphia event, Scalia also took a shot at a public impression that the current Court is diverse, noting that the nine current Justices studied either at Harvard or Yale, and questioning if they represent "the deeply felt principles of the country."

And as usual, Scalia took some shots at jurists who believe in the idea of a “living Constitution.” "There are some wonderful decisions that have been made by an overreaching Supreme Court. That doesn't mean they're right," Scalia said.