Why I Loved Sandra Day O'Connor

Source: Annenberg Public Policy Center

We learned last week that she had passed away. We knew it was coming. We knew she was quite ill and that the Justice O'Connor we knew had already left us. But we are, nevertheless, newly aggrieved that she is gone.

I didn't know Justice O'Connor well on a personal or social level. But I did have the opportunity to meet her and to spend some time chatting informally several times. The first time was in February 1986 when she was escorting the Supreme Court Fellowship finalists, then a few times during my fellowship year, and once or twice again at some event at the Court or elsewhere.

Credit: Alan Day/Western Horseman

We usually just engaged in small talk. Nothing jurisprudential or otherwise profound, except for our shared, profound love of the Arizona desert. She would speak of her home in the Southwest and growing up on a cattle ranch--a real "cowgirl of the Arizona desert." I would talk of my two Army tours at Fort Huachuca, Arizona, and riding on post for hours every weekend--a wannabe cowboy. I confess feeling a bit special that she would remember me and our Arizona chats each time we met.

So yes, for that reason alone she has had a special place in my heart.

(A dear friend of mine who taught at the University of Arizona became close to her in her latter years on the bench and thereafter, and everything he told me about Justice O'Connor confirmed that my heart was in the right place.)

But let me speak as one who follows the Supreme Court, and who believes that the Court is at its best when it protects civil rights and liberties--limited only by legitimately overriding interests. I have certainly not always agreed with Justice O'Connor. Though she might well have had the better position on many issues.

[Yes, there's Bush v. Gore (2000), perhaps the most dishonest, unprincipled Court decision of the modern era--regardless of how one feels about the ultimate outcome. Her vote in the bare majority was inexcusable. Later in life, she seemed to recognize that.

N.B., many of the great Justices in Supreme Court history have likewise cast a deplorable vote or authored some dreadful majority opinion.]

Nevertheless, without surveying her entire body of judicial work, it would be accurate, albeit barely relevant, to say that I did agree with her on many of the most important issues of the day. Much much more important than that, however, I admired how she typically strove to strike a wise balance between the competing needs of liberty and order, as opposed to elevating some rigid ideologically-driven methodology for decision-making.

Here are just a few of Justice O'Connor's opinions that, in my view, show what a fine Justice she was:

Credit: Kevin Wolf/Invision/AP

Mississippi University for Women v. Hogan, 1982: O'Connor wrote the opinion for the 5-4 majority that the state nursing school's restriction to women was invalid sex discrimination. Rejecting the dissenters' insistence that the women-only institution was "discriminat[ing] invidiously against no one," she explained that the state was actually perpetuating "archaic and stereotypic notions" about the proper roles for men and women.

Planned Parenthood v. Casey, 1992: O'Connor co-authored a three-Justice plurality opinion to sustain a woman's right to choose. Articulating an "undue burden" standard to balance the "personal liberty" of deciding whether to carry a pregnancy to term against "the demands of organized society," she rejected the four dissenters' absurd argument that there could be no such constitutionally protected right to choose an abortion because, among other things, "the Constitution says absolutely nothing about it."

[For more on that preposterous argument, see The Leaked [Dobbs] Opinion--Constitutional Nonsense Revisited* (Part 1), May 7, 2022. Of course, Dobbs overruled O'Connor's balanced approach.]

Lawrence v. Texas, 2003: O'Connor joined the Court's 6-3 decision to invalidate Texas's law criminalizing "sodomy" engaged in by members of the same sex. She did so, in a separate concurring opinion, based on constitutional equal protection, arguing that mere "moral disapproval" does not "justify a law that discriminates among groups of persons"--notwithstanding the dissenters' reliance on "the moral opprobrium that has traditionally attached to homosexual conduct."

Grutter v. Bollinger, 2003: O'Connor authored the Court's 5-4 decision upholding the limited consideration of race to ensure the "compelling" benefits of diversity in education. But, while rejecting the dissenters' argument that racial preferences were necessarily prohibited by equal protection, she did insist that educational institutions must ensure "narrow tailoring," such that any "race-conscious admissions program [does] not unduly harm members of any racial group."

[Of course, as with her balanced approach on the right to choose in Casey, the Court recently overruled her approach to affirmative action, invalidating any consideration of race in education admissions, in Students for Fair Admissions v. Harvard (2023).]

Ewing v. California, 2003: O'Connor wrote a plurality opinion which, however, secured a majority of her colleagues for the proposition that the "cruel and unusual" prohibition of the 8th Amendment did forbid punishments that were grossly disproportionate. She rejected the view, repeated by a couple of Justices in several cases, that the Constitution prohibited only "horrid modes of punishment" such as "flaying alive, rending assunder with horses...maiming, mutilating and scourging to death." [Justice Scalia's reference to his opinion in Harmelin v. Michigan, (1991).] To O'Connor, the mere fact that the term "excessive" was not used to modify "punishments" in the 8th Amendment did not exclude the possibility that such a punishment could be "cruel and unusual."

Hamdi v. Rumsfeld, 2004: O'Connor authored the Court's opinion, holding that an American citizen imprisoned in this country as an "enemy combatant"--without charges or a hearing--does have a due process right to receive notice of the Government’s factual assertions and an opportunity to rebut them in a judicial proceeding. The dissenters argued that she was "transmogrifying the Great Writ." But she explained that, in the absence of a valid suspension of habeas corpus by Congress, "it would turn our system of checks and balances on its head" to deny a citizen the right to judicially challenge the basis for his detention government, "simply because the Executive opposes making available such a challenge."

To be sure, Justice O'Connor was not always in the majority. At least two of her dissenting opinions deserve mention as underscoring her wise sense of balance and care about preserving fundamental principles despite competing interests.

Atwater v. Lago Vista, 2001: In a case involving a seat belt violation, the majority held that the 4th Amendment permitted a warrantless arrest for any criminal offense, regardless of how minor, as well as a full custodial search and detention in a jail cell at the police precinct during "processing"--all incident to that arrest. O'Connor was appalled. Noting that the majority itself recognized that the arrest and detention of the driver--a mother with children in the back seat--was a "pointless indignity" serving no legitimate law enforcement interest, she found it incongruous that the majority could nevertheless adopt an unqualified bright line that rendered the "extraordinary intrusion" on a mere seat-belt violator to be constitutionally permissible. As she put it, "the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment" that prohibits searches and seizures that are unreasonable.

Employment Division of Oregon v. Smith, 1990: In a case involving the application of a criminal drug law against the use of peyote by members of a Native American church in an ancient religious ritual, the majority reversed the decision of Oregon's high court which had ruled that a religious exemption was constitutionally required. Writing for the majority to reject any such exemption, Justice Scalia declared that the Supreme Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law." In her separate concurring opinion--joined in most part by the dissenting Justices--O'Connor comprehensively detailed how Scalia's assertion was simply dishonest and "dramatically departs from well settled First Amendment jurisprudence."

As O'Connor showed, the Court had frequently repeated that only those laws that are "essential to accomplish an overriding governmental interest" could constitutionally burden religious free exercise. Indeed, despite the majority's mischaracterization of such a test as a "constitutional anomaly," she noted that it was actually the "constitutional norm" to protect fundamental rights and prohibit racial discrimination.

Source: Sandra Day O'Connor Institute

Beyond that, she took the majority to task for insisting that an unavoidable and acceptable consequence of democratic government was to "place at a relative disadvantage those religious practices that are not widely engaged in." Citing, among other decisions, Chief Justice Warren Burger's opinion for the Court in Wisconsin v. Yoder (1972), she felt compelled to remind the majority that, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups."

[I know I have spent more time on this case than others. But I find Scalia's majority opinion particularly galling in its dishonesty and callous disregard of a minority religion. For like reason, I find Justice O'Connor's separate opinion so imperative. Those who follow the Court's religious liberty jurisprudence know that the Court has done whatever it can to bypass the Smith decision. Several Justices have already made clear that the decision should be "reconsidered." It is almost certain that O'Connor's opinion will eventually be expressly vindicated by the Court.]

This has been a brief survey of some of the most significant and representative opinions of Justice Sandra Day O'Connor. Perhaps more than any other member of the Court over the last few generations, she has been a wise and candid balancer of the strong competing interests at issue in virtually all the cases that reach the Court. And unlike some of her colleagues who have seemed ideologically blind or otherwise uncompromising to disfavored or less-favored interests, or who avow fidelity to some politically induced and supposedly neutral interpretive methodology, she has been motivated by the practical realities and the real-world ramifications of her decisions. That is anathema to some Justices.

"Just apply the law" is a mantra that fails to recognize that there is almost always strong legal support for both sides in appeals at the Court. For Justice O'Connor, the actual consequences from embracing one legally supported position or the other was necessarily a foremost consideration. For that reason, her opinions made sense. Like the very best Justices in the Court's history, wisdom and decency and reality, as opposed to some cramped formalistic legalism, were the hallmarks of O'Connor's jurisprudence.

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

•  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
• State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
• State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
• And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].

In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Want Scalia-type Justices? Really? (Part 3: Discrimination Against Gays & Lesbians)

Let's continue considering "Scalia-type Justices--Really?"

But first, wishing all a happy and healthy 2017. I'm back from Christmas break--in Scottsdale, which I love almost as much as upstate New York--and have finished grading exams. So it's back to addressing some important issues facing the nation and this state in NYCW.

We've been considering whether self-proclaimed Scalia admirers really know and admire his actual record. In the last post, we asked whether they really know and admire his actual record on equal protection for women--he regularly voted against it, he approved older decisions that ruled against it, and he stated publicly that he didn't believe the Constitution required it.

Do self-proclaimed Scalia admirers really want President-elect Trump to appoint Justices who agree with that? That is Scalia's record. Not someone's personal view or conjecture about it.

Now let's continue.

Photo: Atlantic Wire

If Scalia's record was one of contempt for the notion of equal constitutional rights for women, it was one of outright hostility towards gay rights and any constitutional protection for gays and lesbians. (One could well extrapolate to his likely positions on LGBT rights generally, but let's stick here to the record of his that we do have.)

Scalia never supported equal protection or due process rights for gays and lesbians. More than that, he explicitly did support and approve animosity and discrimination against them.

Let's review each of the relevant cases in which Scalia participated. First, here are those cases in which he wrote an opinion:

Romer v. Evans (1996)
This case involved a Colorado law that prohibited any local law that sought to protect gays and lesbians from discrimination. The Supreme Court ruled that the state law was unconstitutional. By singling out a group to be denied legal protection, the law violated the constitutional guarantee of equal protection.
Scalia dissented.
In Scalia's view, the state law was an appropriate disapproval of homosexuality. In his own words, the law was a "constitutionally permissible" and "eminently reasonable" effort by the state's citizens--who are "entitled to be hostile toward homosexual conduct"--to deny protection "to those with a self-avowed tendency or desire to engage in the conduct." [My emphasis added.]

Lawrence v. Texas (2003)
In this landmark gay rights case, the Court ruled that laws that made same-sex intimacy a crime were unconstitutional.The case specifically involved a Texas law that criminalized "deviate sexual intercourse," defined in part as sexual activity "with another individual of the same sex." The Court held that there was no legitimate government purpose that justified prohibiting and punishing the personal intimacy targeted by the law.
Scalia dissented.
In Scalia's view, it was perfectly permissible to make "homosexual sex" a crime. According to him, the law was a legitimate expression that such conduct is "immoral and unacceptable." He protested that "homosexual sodomy is not a fundamental right" and, therefore, that it could legitimately be made a crime just like "fornication, bigamy, adultery, adult incest, bestiality, and obscenity." [My emphasis added.]

U.S. v. Windsor (2013)
In this case, the Court invalidated that part of the so-called Defense of Marriage Act (federal DOMA) that denied federal marriage benefits to legally married same-sex couples. The Court explained that a "bare congressional desire" to treat "a politically unpopular group" differently was not a legitimate justification for denying them benefits that are available to other legally married couples.
Scalia dissented.
In Scalia's view, DOMA was a valid defense of traditional marriage. He again complained, and claimed, that the majority had "declared a constitutional right to homosexual sodomy." Likewise, he again insisted that the Constitution "let['s] the People decide" whether or not to "enforce traditional moral and sexual norms." [My emphasis added.]

Obergefell v. Hodges (2015)
In yet another landmark gay rights case, the Court ruled that the right to marry may not be denied to same-sex couples. The Court explained that the right to marry is fundamental, that personal choices concerning marriage are part of constitutionally protected liberty, and that there is no legally relevant difference between same- and opposite-sex couples with respect to these matters.
Scalia dissented.
Scalia ridiculed the majority's "extravagant praise of liberty" that "robs the People" of  their right to pass the laws they choose. As with equal rights for women, he insisted that the issue of same-sex marriage was settled "[w]hen the Fourteenth Amendment was ratified in 1868." Although that amendment guarantees equal protection and liberty against state laws, Scalia argued that "every State limited marriage to one man and one woman" when the amendment was ratified, and because "no one doubted the constitutionality of doing so" at that time, "[t]hat resolves these cases." [My emphasis added.]

Two additional major gay rights cases deserve mention. Scalia did not author an opinion in these cases, but he did cast a vote:

Boy Scouts v. Dale (2000)
In this case, the Court held that New Jersey's anti-discrimination law--which among other classifications included sexual orientation--could not be applied to the Boy Scouts. According to the majority's opinion, the Boy Scouts' choice to exclude gays from leadership positions was an exercise of their constitutional "freedom of expressive association."
The dissenting Justices, on the other hand, argued that "eliminating discrimination is a compelling state interest" that justified enforcement of the state's law.
Not surprisingly, Scalia approved the disparate treatment of gays. He joined the majority and sided with the Boy Scouts against the state's prohibition of sexual orientation discrimination.

Christian Legal Society v. Martinez (2010)
This case involved a California state college that refused to recognize and fund a student organization that excluded all gay and lesbian students from membership. The Court upheld the college's non-discrimination policy, which it applied to all student groups, that membership must be open to all students.
The dissenting Justices, on the other hand, argued that the student group was rightfully exercising its constitutional freedom to express its view about sexual morality.
Again, not surprisingly, Scalia voted with the dissenters and, thus, as in every other case, he opposed the position for equal treatment of gays and lesbians.

Yes, in every one of these cases there were arguments and interests presented on both sides. In every case, there were precedential, historical, interpretive, and other policy and legally relevant support proffered for both sides. Indeed, that's the very reason such cases get to the Supreme Court. But in every case, no matter what the arguments or interests, Scalia adopted those against the rights of gays and lesbians.

When a state chose to prohibit local laws that protected gays and lesbians from discrimination, Scalia insisted that the Court should defer to the state's prerogative. But when states chose to actually prohibit such discrimination, he disregarded the supposed need to defer and sided against those state policies.

Regarding laws that criminalized same-sex intimacy and a law that denied government benefits to legally married same-sex-couples, he insisted that "homosexual sodomy" was not a constitutional right. But when confronted with anti-discrimination laws protecting gays and lesbians, he found fundamental rights to exclude them from the Boy Scouts and to exclude them from student organizations.

The inconsistencies in Scalia's legal positions abound. But there is one consistency that only deliberate blindness would fail to see. Scalia was utterly hostile to the protection of gays and lesbians from discrimination. In Scalia's view, such discrimination was perfectly reasonable and constitutionally justified.

To Scalia, the Constitution's guarantee of "equal protection" was to be read as "equal protection except for gays and lesbians, and [as we saw in the last post] except for women."

Once again: Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with Scalia on that? And one more question: Would you really be willing to say so when asked at a Senate confirmation hearing? I guess we shall see.


In the next post, we'll take a look at Scalia's positions on cruel and unusual punishment.

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!

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.