Thursday, February 25, 2016

Justice Scalia's Record (Part 2: Women's Rights)

In Part 1, we looked at Justice Antonin Scalia's opinions in major cases dealing with religious liberty and gun rights. Again, the purpose there, and here, is neither to hail nor condemn the positions he took on those issues. I have made plain enough that I find much of his record dreadful--i.e., reactionary, hostile to some basic rights and equalities, and less than persuasive. Indeed, I am sure that many of his supposed supporters and admirers would actually be aghast at some of Scalia's positions, or at least would decline to embrace them publicly. But the focus of this series is what Scalia himself did embrace in his opinions, right or wrong, wise or foolish, popular or not.

photo: AP/Manuel Balce Ceneta 
As in Part 1, we'll review some of the most significant opinions Justice Antonin Scalia authored in cases involving major constitutional issues. We'll take an unvarnished look at the positions he took and the arguments he made. We'll direct our attention to Scalia's record on issues of equality. In this Part 2, we'll focus specifically on women's rights.
[As in Part 1, in the interest of full disclosure, I will state my agreement or disagreement with Scalia.]

Women's Rights
U.S. v. Virginia (1996): the Court's majority ruled that it was unconstitutional discrimination for women to be denied admission to Virginia Military Institute, a state institution. Scalia, dissenting by himself, argued that the exclusion of women was a legitimate state policy.
The majority took the position that governments may not treat women unequally unless there is some "important governmental objective" for doing so. In the majority's view, Virginia failed to present any such justification.
In his lone dissent, Scalia argued that it was more consistent with "our past jurisprudence" to only require some "rational-basis" for treating women differently than men. But even applying the "important governmental objective" standard, Scalia contended that the benefits of single-sex education more than sufficed to validate Virginia's decision to maintain VMI as an all male institution.

J.E.B. v. Alabama (1994): the Court's majority ruled that intentional gender-based discrimination in jury selection violates constitutional equal protection. In dissent, Scalia argued that a litigant's gender-based dismissal of potential jurors (by so-called "peremptory challenges) is not "sex-based animus," but merely the "desire to get a jury favorably disposed" to one's case.
The majority took the position that all persons have a right not to be excluded from a jury on the basis of discriminatory presumptions, whether about race or gender.
But Scalia reasoned that no group is denied equal protection if "all groups are subject to the peremptory challenge." He chided the majority for basing its decision, not on "any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes."

Planned Parenthood v. Casey (1992): the Court's majority reaffirmed a woman's right to choose an abortion in the early stages of pregnancy, and it held that governments could impose some reasonable restrictions, but not an "undue burden" on that right. In dissent, Scalia rejected the notion that there was any such right, period.
The majority explained that "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected" by the Constitution--whether "marriage, procreation, contraception, family relationships, child rearing, and education."
Scalia, "appalled" by the "outrageous arguments" of the majority's opinion, protested that the  "Constitution says absolutely nothing" about the right to an abortion. Moreover, he argued that the majority's asserted protection of "intimate and personal" decisions was equally applicable to "homosexual sodomy, polygamy, adult incest, and suicide"--"all of which," he insisted, "can constitutionally be proscribed because it is our unquestionable constitutional tradition."

[Disclosure: Not too surprisingly, I disagree with Scalia's position in each of those cases. As for the Virginia (VMI) case, it seems clear that a break from the historical 2nd class treatment of women demands that there be some genuinely strong reason for treating women differently than men, not some mere "rational" ground that Scalia preferred. As for the J.E.B. case, it is surely more than "conspicuous obeisance to the equality of the sexes" to prohibit discriminatory treatment that is based solely on a person's gender, whether in jury selection or in any other governmental function. As for Casey, Scalia's protestation that the right to choose an abortion is not mentioned in the Constitution is a preposterous constitutional argument. Most fundamental rights are not mentioned, e.g., the right to marry, to have children, to raise one's own children, to be intimate with one's spouse, to have a friend, etc., etc., etc. (See Supremely Awful Arguments: Constitutional Nonsense [Part 2]: It's not mentioned in the Constitution.) Beyond that, if there is no genuinely legitimate reason for government to prohibit "homosexual sodomy," as Scalia was fond of repeatedly calling it, then it should not be prohibited--which is precisely what the Court, over Scalia's dissent, subsequently held in Lawrence v. Texas (2003).

Notably, Scalia took positions in each of those cases that were contrary to the rights of women. Lest that observation be deemed to insinuate something unfairly, it is, in fact, consistent with views Scalia expressed off the Court. For example, in an interview in 2011--several years after his opinions in those cases--he made clear, as he did on numerous occasions, that he did not think that constitutional equal protection even applied to women: "[T]he Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that."
Scalia seemed to backtrack a bit in another interview a couple of years later--but only with cryptic ambiguity "Of course [the Constitution] covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not. What I was [previously] referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?'"

Indeed, in his lone dissenting opinion in the Virginia (VMI) case, Scalia supported his preference for the mere "rational basis" standard by favorably citing older decisions of the Court that had upheld state laws excluding women from jury rolls (Hoyt v. Florida [1961]) and prohibiting women from being bartenders (Goesaert v. Cleary [1948]).]

In Part 3, we'll review Scalia's positions on gay rights.