Supreme Court Justice Antonin Scalia got lots of attention over the last two days for an interview with California Lawyer in which he insists the 14th Amendment to the Constitution, with its promise of "equal protection" for all citizens, doesn't apply to women.
Of course, in 1971 the Supreme Court unanimously ruled that it does protect women from discrimination, and that interpretation has never been, and still is not, in peril. Scalia appears to be turning into a crank. Here's what he told California Lawyer:
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....The only issue is whether it prohibits [sex discrimination]. 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.
It wouldn't just be women who'd lose their right to equal protection if we took Scalia's view: If we believe the 14th Amendment only existed to give black former slaves as well as free black their full citizenship rights – a long-overdue and worthy goal, by the way -- then it doesn't apply to Jews, Latinos, Asians, or for that matter, black women. I've got to say I'm glad Scalia admits that black men have some rights – I'm a glass half-full kind of person -- but it seems a shame to leave out black women…and the rest of us.
The fundamental problem with Scalia's reasoning -- that "if the current society" thinks women deserve equal protection, we can pass a law to give it to us – is ridiculous. Because what he's also saying is if a future society decided we're not protected, a legislative body could pass a law saying sex discrimination is legal – and women can't appeal to the high court or the Constitution, because the rights guaranteed there don't apply to us.
What's most preposterous is that Scalia was part of the most shameful and flagrantly political use – it was abuse, really -- of the 14th Amendment in Supreme Court history, when he joined the majority in the Bush vs. Gore decision and stopped the Florida recount, brazenly using "equal protection" as one of the cornerstones. The pro-Bush SCOTUS majority argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.) What a joke.
Remember, it's also Scalia the strict originalist, who insists we can't interpret the Constitution's authors in light of radically changed circumstances, who has taken the lead in giving "corporations" personhood rights, ruling in Citizens United that campaign-finance laws violated their speech rights under the First Amendment. "Corporations" weren't mentioned by the writers of the Constitution or any of it's amendments; I guess originalism has its limits, where the rights of the wealthy are concerned.
There was one bright note in the California Lawyer interview: Scalia decried the nation relying too much on "nine superannuated judges who have been there too long, imposing these demands on society." If he thinks he's been there "too long," he should retire.
I talked about Scalia's remarks on MSNBC's "The Ed Show" Tuesday: