A Supremely Blockbuster New Term?

For much of the last two terms, the United States Supreme Court was short one Justice. The vacancy created by the death of Justice Antonin Scalia in early 2016 remained unfilled until the appointment of Neil Gorsuch late last term. During that interim period, the eight sitting Justices came to a 4-4 draw in several cases; in other cases, the competing ideological sides obviously compromised in order to render some decision; and in still other cases, the Justices either declined to grant review or they did grant review in cases that would be heard when there would be a full complement of nine Justices.

For the 2017-18 term of Court that is to begin Monday, October 2--the iconic First Monday in October--the cases that are already on the Court's docket strongly suggest that this will be a year of blockbuster decisions. It is always possible, of course, that the Justices will bob and weave and avoid confronting some of the hot-button constitutional questions at the heart of these cases. But with four Justices who lean very politically conservative, and four very politically liberal--oftentimes leaving Justice Anthony Kennedy to cast the deciding vote-- the Court can be expected to resolve some very ideologically-contentious issues with some very ideologically-charged rulings.

Here are several of the most significant issues the Court will tackle this term:

Partisan Gerrymandering
As in extreme gerrymandering. As in extreme mathematical efficiency to virtually guarantee that the political party in power remains in power. As in making it extremely difficult for that party to lose elections.
So, for example, in the case to be heard by the Court this week, Gill v. Whitford, the Republican party in power in Wisconsin has carved up voting districts in the state in ways that severely dilute the effect of Democratic votes. This gerrymandering has, in fact, produced a near certainty that the Republicans retain control of the legislature. Indeed, even when the Democratic party has won a substantial majority of the statewide vote in recent years, the Republicans have still won a substantial majority of the voting districts.
[Yes, Democrats have done the same thing when they can.]
Racial gerrymandering is unconstitutional. But what about partisan gerrymandering? Is it just another "political question" which the majority of the Court believes should be resolved in the political process? Or is partisan gerrymandering, at least in extreme cases, a fundamental violation of our democratic voting process that calls for a judicial redress?

Gay Rights/Religious Liberty
What happens when equal rights for gays and lesbians competes with religious objections to supporting their life choices? In Masterpiece Cakeshop v. Colorado, a baker refused on religious grounds to make a cake for a same-sex wedding. Colorado ruled that this refusal was a violation of the state's public accommodation law which, among other things, prohibits sexual-orientation discrimination.
There are many legal and constitutional ingredients relevant to this case. Nevertheless, it is a pretty sure bet that predetermined positions on LGBT rights will be reflected in the voting of most, if not all, of the Justices. For example, it is very very difficult to conceive of Justices Ginsburg and Sotomayor siding with the religiously objecting baker against the same-sex couple. It is at least as difficult to imagine Justices Thomas and Alito and Gorsuch siding with the same-sex couple against the baker. On the other hand, it is not difficult to see Justice Kennedy--or even Chief Justice Roberts--actually balancing the competing interests and determining the outcome of the case.
There are a few wrinkles that may affect the Court's decision. One has to do with the requested design of the cake in question--would the baker be required to include a message on the cake that expresses support for same-sex marriage, perhaps infringing on the baker's free speech?
Another wrinkle involves the current state of 1st Amendment religious liberty under which any "otherwise vaild law" defeats religious objections--thanks to the 1990 Scalia-authored decision, in Oregon v. Smith, derogating the religious freedom of Native Americans. [See Justice Scalia's Record (Part 1), New York Court Watcher, Feb. 18, 2016; The Fall of Free Exercise, 70 Alb. L. Rev. 1399 (2007).]
One last wrinkle to mention is that Colorado apparently does allow exemptions from its public accommodations law--e.g., an African-American baker need not include a white supremacy message. That raises the question of whether the state is discriminating against religious requests for exemptions.

Technology-Enabled Searches
When seeking a cell phone company's location records on a cell phone user, must law enforcement first obtain a warrant? Or as the Court has often styled the issue in other cases, when the government seeks to obtain and examine such records, is that a "search" within the meaning of the 4th Amendment? If it is, then a warrant supported by probable cause is required. If it's not a "search," then no warrant is required. This is the question presented in Carpenter v. U.S.
Whether or not the Court will view obtaining and examining cell phone location records as a "search"--thus triggering the warrant requirement--depends upon whether or not a majority of the Justices adhere to some search and seizure doctrines it has applied in the past. Some of these doctrines were, until recently, thought to have been permanently rejected by the Court. Others have never been explicitly rejected, but seem to have been weakened in Court decisions involving technology.
One of these doctrines is that a search is not a "search" unless there is a "trespass"--some illegal entry or contact--by the government on one of the things mentioned in the 4th Amendment. Sooooo, since the location records kept by a cell company do not belong to the cell phone user, there is no "trespass" upon something he owns and, thus, there is no "search." Additionally, cell phone location records are obviously not mentioned or even implicated by any of the items listed in the 4th Amendment which was ratified in 1792 (or its state government application via the 14th Amendment of 1868). 
Then there's the 3rd party doctrine. Since the cell phone company--the 3rd party--has access to the cell user's location, there is no "reasonable expectation of privacy" in such records and, thus, the government's examining of those records is not a "search" under the 4th Amendment.
[Hey, those aren't my doctrines. Like others--other courts, other judges and justices, other rulings--I disagree with those doctrines and, indeed, believe they are preposterous and were developed to approve very questionable, warrantless searches. See Is a Search a Search.]
We might see whether the Court abandons or at least further undermines those doctrines--or sticks to them.

Union Dues
May a state require non-members of a public employees union to pay some reduced dues (aka "agency fees") to help defray the expenses of collective bargaining and other services that the union provides for all the covered public employees, whether members or not?
The Court approved such dues in its 1977 decision in Abood v. Detroit Bd of Ed. But since then, some of the Justices have made clear their disagreement with Abood. Then, in 2016, following Scalia's death, the Court split 4-4 on that issue in Friedrichs v. California Teachers Assn.
Now, in Janus v. American Federation of St, Cnty, and Munic Employees (AFSCME), which the Justices just granted review last week, that question is back before the Court.
The issue pits the need of public employee unions in representing the rights of the workers against the counter claims of free speech and association of non-members who do not wish to support the positions of the unions--bargaining or otherwise.
Gorsuch would seem to be the tipping vote, ending the 4-4 tie, and that should not give comfort to the unions. But will both Roberts and Kennedy agree to actually overturn Abood? Stay tuned.

Anti-Gay Employment Discrimination (possible case)
Is discrimination against gays and lesbians a violation of the civil rights laws? The 11th Circuit Court of Appeals--the federal appellate court that sits in Atlanta, GA--recently ruled, in Evans v. Georgia Regional Hospital, that discrimination against a worker because she is a lesbian does not violate Title VII of the Civil Rights Law. That 1964 law prohibits sex discrimination, but it does not explicitly prohibit sexual-orientation discrimination.
The Obama administration took the position that sexual orientation discrimination is a form of sexual discrimination. Among other things, it is based on discriminatory sexual stereotyping--e.g., a man may partner with a woman, but a woman may not; a woman may partner with a man, but a man may not. By contrast, the Trump administration has argued that sex discrimination covers no such thing.
The 7th Circuit, the federal appeals court that sits in Chicago, recently took the position in Hively v. Ivy Tech that prohibited sex discrimination does include discrimination based on sexual-orientation. Notably, that court's position was supported by several of the federal judiciary's well-recognized heavyweights, including Judges Diane Wood, Frank Easterbrook, and Richard Posner--the latter authoring a separate concurring opinion arguing the irrational bigotry of discrimination against gays and lesbians, and even listing some gays throughout history who have contributed immensely to civilization. 
With this split among the circuits, and the challenge of Posner to any legitimate defense of sexual-orientation discrimination, it seems very likely that the Supreme Court will grant review to address the issue.

Gun Rights (possible case)
Does it violate the individual right to bear arms to require a license to carry a concealed weapon, based on some actual need for self-protection? The D.C. Circuit recently held that the D.C. law requiring such a license was invalid. That the law was contrary to the Supreme Court's 2008 decision, in D.C. v Heller, that the 2nd Amendment guarantees an individual right to bear arms.
This D.C. Circuit decision, in Wrenn v. D.C., seems to conflict with the 9th Circuit's 2016 decision in Peruta v. San Diego County, upholding a similar concealed-carry licensing requirement. Adding to the intrigue, the Supreme Court, just this past spring, declined to review that 9th Circuit's decision. Adding to that, Justices Thomas and Gorsuch dissented from the Court's decision not to review that case. Those dissenters argued that the Supreme Court was disparaging gun rights.
So it's pretty clear how Thomas and Gorsuch would vote if the Supreme Court now granted review in Wrenn in order to resolve the conflict among the circuits. But how the others would vote--especially after denying review in Peruta--is another question.

Trump's Travel Ban (moot?)
President Trump's original travel ban was replaced by a second. And last term, by a  6-3 majority in Trump v. Int'l Refugee Asst Project, the Court partially upheld the orders of the courts below that had temporarily barred enforcement of that executive order. The Court did, however, unanimously reverse the lower courts "with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States"--i.e., the Trump ban could be enforced against them. At the same time, the Court agreed to hear the case this term.
However, on the way to the hearing, which had been scheduled for this week, the Trump administration promulgated travel ban 3.0. That certainly seemed to make the case involving travel ban 2.0 moot--i.e., no longer an ongoing case or controversy in need of judicial resolution. So the Court cancelled oral arguments and asked for briefing on the question of mootness.
In short, the original case involving travel ban 2.0, which had been granted review, is no longer on the Court's schedule.

There are surely other significant cases which the Court has already accepted for review, and others which it will accept. But the foregoing six--which have been granted review or are very likely to be granted soon--are certainly among the most hot-button and ideologically-charged among the cases that promise to make this 2017-18 term a blockbuster one.

Gorsuch, Part 4: His (Backward and Extreme) Past IS Prologue

Then-Judge Gorsuch compiled a distinctive record on the federal appeals court.

Now-Justice Gorsuch has already begun to build another distinctive record at the Supreme Court.

They are very much the same.

Let's look at them both.

At his confirmation hearing, Democratic Senators harped on an opinion that then-Judge Gorsuch had written involving a fired truck driver. In his opinion, Gorsuch took the position that the company was within its rights to fire the trucker who had left his rig on the side of a highway--even though the trucker had done so in order to save his life, which was in danger, because he and his rig were stranded in a severe winter storm.

Whatever one might think about Gorsuch's opinion, it's actually worse, or better, depending on one's point of view. Gorsuch's opinion was a dissent. That is, his colleagues had sided with the trucker who, therefore, won the case and was vindicated. But Gorsuch apparently thought that his colleagues were so wrong, and that it was so important that the company be allowed to fire the trucker, that he authored a dissenting opinion to make public his disapproval of his colleagues' decision favoring the trucker.

At the confirmation hearing, Republican Senators, as well as Gorsuch himself, sought to downplay the Democrats' criticism. They insisted that this particular opinion did not really represent any overall bias against workers, or in favor of business, or reflect a callous indifference or ultra-conservative ideology.

Hmmmm.

The truth of the matter is this. Anyone willing to actually review Gorsuch's record as a federal appeals court judge, and willing to be honest about what that review revealed, would have to acknowledge that his trucker opinion was fairly typical--not an aberration--and that Gorsuch's record was ultra-conservative. Good or bad, that is what it was. Not moderate. Not balanced. Not neutral in any real sense of that term. But overwhelmingly, ideologically, one-sided.

Of course, that should be no surprise. That is exactly why the Federalist Society and the Heritage Foundation--too institutions that are unabashedly conservative [Again, good or bad.]--recommended Gorsuch to Trump. Nor should that be a surprise to anyone who cared to pay attention to what Gorsuch had previously said and written about the role of judges. And more to the point, about his view of judicial decision-making. In my own view, as I have written previously, it is "extreme and backward." [See Part 3; Part 2; Part 1.] 

Now that may sound good to some. That may indeed be what some believe to be appropriate for a judge. That is, a judge should strictly adhere to the past, strictly oppose judicial attempts to move the law forward, strictly insist on preserving those "traditional" values such as old school religion, free market capitalism, etc., etc.

But whether one believes that being "extreme and backward"--in that sense--is good or bad, preferable and appropriate in a judge or not, it cannot seriously be disputed that Gorsuch's record is just that. Sure, anything can be disputed, just as some of the Senators and commentators disputed any such characterization. And especially if one is entirely unfamiliar with Gorsuch's record, or if one is so ideologically motivated that Gorsuch's actual record is simply denied.

So let's take a look at Gorsuch's record. And since dissenting opinions, like Gorsuch's opinion in the trucker case, are so revealing about what the authoring judge thinks is important--i.e., important enough to disagree openly and take a stand against a majority of that judge's colleagues--let's focus on those.

We'll begin with employment law cases. They demonstrate that siding against workers, even in the most sympathetic cases, was the pattern--not the exception--for Gorsuch.

Worker/Employer
TransAm Trucking, Inc. v. Administrative Review Board: This is the fired trucker case. The majority of the appeals court held that the need to save his life necessarily justified the trucker's leaving his rig. Judge Gorsuch disagreed; in dissent he argued that the employment contract and the employer's rules did not permit the trucker to leave, regardless of the dire circumstances.

Compass Environmental, Inc. v. Occupational Safety and Health Review Com’n: The majority upheld OSHA's finding that the company committed a serious safety violation by failing to train its now-deceased employee on avoiding an electrocution hazard at work. Gorsuch dissented; he argued that the company only violated its own internal rules.

N.L.R.B. v. Community Health Services: The majority upheld the NLRB's award of backpay to workers where the employer had wrongfully reduced their working hours. Gorsuch dissented; he argued that the workers' backpay should be reduced if they had taken a "second or 'moonlighting' job" to make up for their reduced hours.

Strickland v. United Parcel Service, Inc.: The majority held that the evidence that the female worker was treated worse than her male co-workers entitled her to a jury trial on her sex discrimination claim. Gorsuch dissented on the ground that, in his view, the evidence showed that the employer harassed male workers too.

See a pattern emerging?
Let's continue with a few other civil cases.
(We'll look at criminal cases in the next post.)

Consumer Protection
Ragab v. Howard: The majority held that the plaintiff was entitled to sue the corporate defendants for violating consumer credit repair laws. Gorsuch dissented; he argued that, despite inconsistencies in the parties' several agreements, the "non-essential [procedural] terms" show that the plaintiff should be forced into arbitration.

Right to Choose
Planned Parenthood Association of Utah v. Herbert: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled in favor of Utah Planned Parenthood. The latter had claimed that the governor's stated reason for stopping funding for Planned Parenthood was pretextual, and that his true motivation was to punish the exercise of constitutional rights. Gorsuch dissented; he argued on procedural grounds for a rehearing and on substantive grounds that the governor had the authority to discontinue the funding.

Church-State Separation
American Atheists, Inc. v. Davenport: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that Utah's action, erecting twelve-foot high white crosses along public highways to honor fallen state troopers, was an unconstitutional endorsement of a certain religion. Gorsuch dissented; he argued that the original decision was wrong because only an "observer [who was] biased, replete with foibles, and prone to mistake" would believe that the white crosses were endorsing a religion. [Sic!]

Green v. Haskell County Board of Com’rs: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that the erection of a Ten Commandments monument on county courthouse grounds was an unconstitutional government endorsement of religion. The proposal for the monument had been approved by the county board when a local resident told the officials that "the Lord had burdened [his] heart" to create it. Gorsuch dissented; he argued that only "the perceptions of an unreasonable and mistake-prone observer" would lead to the majority's conclusion that religion was being endorsed.
[Again, sic! One may disagree with the "reasonable observer/endorsement" test to determine a constitutional violation. But it can hardly be denied that a perfectly rational observer might well perceive that religion was indeed being endorsed by a monument to the Decalogue--presented to Moses by God--on government grounds.]

Do those dissents of Gorsuch--those occasions where he felt strongly enough to disagree openly with his colleagues and author an opinion criticizing their decision--demonstrate that he's a moderate? Neutral? Balanced? Or ideologically ultra-conservative?

In the next post, we'll look at Gorsuch's dissents in criminal cases.
(It's not hard to guess what pattern emerges. Hint: it's neither pro-accused nor moderate.)
And following that, we'll look at his record to date on the Supreme Court.
(Same.)

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.