Friday, December 2, 2016

Want Scalia-type Justices? Really? (Part 2: Equal Rights for Women)

In the introductory post, I mentioned several areas of the law in which many of the self-proclaimed admirers of the late Justice Scalia are likely unfamiliar with his actual record, would likely be less admiring if they knew it, or, at the least, would likely express disagreement if they were confronted with it. This applies to both President-elect Trump and to those supposed "Scalia-types" on his list of possibilities for the Supreme Court. Among those areas of the law--and Scalia's record--let's begin with equal protection for women.

Surely, there are some absolute essentials we can all--hopefully--agree upon. Some bare basics of a free and just society. At the very very least, we should be able to agree that our judges believe in certain fundamental principles, that they are committed to them, and that they adhere to them in rendering decisions.

Equal treatment, for example. "Equal protection of the laws" is how the Constitution puts it, and guarantees it. At the very least, our judges should believe in that, be committed to that, and adhere to that.

To be sure, in specific cases, on specific issues, there are good faith disagreements as to what equal treatment entails. But--again hopefully--we can all agree that deliberate, harmful, anachronistic, discriminatory treatment of people based on irrelevant considerations should not be tolerated. Judges rendering decisions under the law should not tolerate it. Judges who, instead, actually endorse or embrace such discrimination are unworthy of their positions and, most certainly, ought not to sit on the nation's highest court.

So when the President-elect says that he admired Justice Scalia and will appoint Justices to the Supreme Court like him, and when other self-proclaimed Scalia admirers cheer, we ought to see what they are admiring and cheering about. Or whether they don't actually know what they are admiring and cheering.

Photo: Bill Pugliano
Getty Images
For instance, Scalia's record on discrimination. As with other issues mentioned in the introductory post, we will examine his actual record on discrimination. Then the question to be asked is, do his self-proclaimed admirers really admire that? Do they really want Justices who agree with Scalia on that? Justices who will vote like Scalia did on that ? Really?

Let's try equal protection for women. Not even issues as controversial as abortion rights. But basic protection of women from discrimination against them because they are women.

Scalia believed that women are not entitled to equal protection under the Constitution. That's right. Not entitled to equal protection. This isn't conjecture. He actually said so. He actually voted and wrote that way. That was his actual record both off and on the Court. Admirers of Scalia, do you really admire that? Really want Justices like that?

Here's what Scalia said a few years before he passed away, in an interview co-hosted by the California Lawyer and the University of California's Hastings College of Law:
Question: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination...So does that mean that we’ve gone off in error?
Scalia: Yes, yes. Sorry, to tell you that...Certainly the 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 admirers, you really want Supreme Court Justices who agree with that? And potential Trump nominees, you really agree with that?

[Following considerable critical reaction to those unequivocal assertions of his, Scalia then equivocated. In an interview in New York magazine 2 years later: "No, you can’t treat women differently, give them higher criminal sentences. Of course not...The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?If there’s a reasonable basis for not ­letting women do something."]

Lest Scalia's remarks in the California Lawyer interview be discounted as not what he really meant, he argued the same thing on numerous occasions. For example, there was Scalia's dissenting opinion in U.S. v. Virginia (1996). The Supreme Court ruled in that case that it was unconstitutional discrimination for women to be denied admission to the Virginia Military Institute. Scalia disagreed--the only Justice to do so, Republican or Democrat, conservative or liberal.

His disagreement? The majority was not "preserv[ing] our society's values regarding…equal protection." To be sure he was being clear, he cited older Supreme Court decisions that reflected the "values" that he believed should be "preserved." He cited favorably an older decision that upheld laws keeping women off jury rolls (Hoyt v. Florida [1961]), and another one that upheld laws prohibiting women from tending bar (Goesaert v. Cleary [1948]). The Court, in his view, should continue with such rulings.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Then there was his dissenting opinion in J.E.B. v. Alabama (1994). The Supreme Court in that case ruled that it was unconstitutional--a violation of equal protection--for the government's attorney to intentionally exclude potential jurors on the basis of their sex. Scalia disagreed with the majority that there was any problem with gender-based selection of jurors. Indeed, he belittled the majority for its "inspiring demonstration of how sternly we disapprove the male chauvinist attitudes of our predecessors," and for "pay[ing] conspicuous obeisance to the equality of the sexes."

Scalia-admirers, do you really want Justices who would approve "male chauvinist attitudes of our predecessors" in the law, and who would disapprove the constitutional "equality of the sexes?" Potential Trump nominees, do you really agree with Scalia on that?

There are abundant illustrations in Scalia's record of the same contempt for women's equality under the Constitution. He didn't believe in it. That's just fact. That's his actual record.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Next, Scalia's record on the treatment of gays and lesbians--and presumably his views on the entire range of LGBT issues. He was even more hostile!