It’s a damn good thing that there aren’t five Scalias on the Supreme Court (there are 3.5 Scalia-equivalents: Scalia himself, Thomas, Roberts, and 0.5 Alito). Unlike Scalia, Thomas at least has the virtue of keeping his yap shut (his wife does the dirty work).
This month’s California Lawyer has an interview with Scalia that is surprising even by his stone-age standards. Remember that Scalia is an “originalist”, who believes that no rights inhere in Americans except those explicitly outlined in the Constitution or obviously intended by its authors. In the interview, The Great Originalist shows the audacity of a dope, asserting that the Constitution doesn’t protect women against gender discrimination. Here are a couple questions (in bold) posted to Scalia along with his answers (plain type).
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, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. 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. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
And what if some states don’t pass laws allowing those rights? And what about gays? If the Framers thought anything about the Constitution and the Bill of Rights, it was that they were meant to guarantee certain rights that were universal and could not be touched by state law.
Yep, when the Amendment uses the word ‘persons’ it really only means men. So if the Legislature passed a law stating that no woman could hold credit in her own name, there is no Constitutional barrier. Or if the Legislature passed a law saying women could receive no federal money for education, there is no Constitutional barrier. Women’s rights are granted purely on the whim of Congress.
What this shows is that there is a very strong philosophy held by many people that actually believe that the 14th Amendment only applies to freed slaves who were men. It does not apply to anyone else, such a women. Thus they do not believe there are Constitutional safeguards regarding discrimination against women.
While we have legislation protecting women from certain forms of discrimination, since these are laws, they can be easily overturned by new laws.
Part of the Bill of Rights is to protect the minority from the tyranny of the majority. Yet Scalia obviously thinks that minority rights should be solely determined by Congress.
Great.This from a Supreme Court that is the most repulsive for individual rights since the Lochner Court 100 years ago and from a Supreme Court Judge whose corruption by outside influences certainly hampers his ability to judge cases. But then, his in ability to be much more than a sneering jackanapes has been in evidence for quite some time. I expect that the dissents from Supreme Court cases will continue to be much better reading.