L.A. Times Sides with Antonin Scalia

Later this month, Supreme Court Justice Antonin Scalia will speak before members of the House of Representatives at the invitation of Tea Party favorite Rep. Michele Bachmann (R-Minn.). According to many liberal critics, this move signifies nothing less than an unholy union between the legislative and judicial branches. "Justice Scalia should protect the integrity of the Court and cancel his appearance at this blatantly partisan, right-wing event," declared Alliance for Justice President Nan Aron. Similarly, The Nation's John Nichols asserted, "the justice has removed any doubt about his ideological preference within the Republican Party."

Do they have a point? The Los Angeles Times thinks not. As the paper argues today in an unsigned editorial:

These objections strike us as far-fetched. We have no doubt that Scalia's conservative views were a factor in Bachmann's decision to invite him. But that doesn't mean that by accepting, Scalia is endorsing her agenda or promising by a nudge and a wink to vote her way. Even so, if some representatives worry about Scalia's lecture being interpreted as a "tea party" event, they can dispel that impression by showing up.

We disagree with many of Scalia's views, such as his archaic belief that women aren't protected against discrimination by the 14th Amendment. Still, he is a learned and provocative legal thinker. If Congress is going to conduct an adult education course on the Supreme Court, his views belong in the curriculum. But so do those of his liberal colleagues. If Bachmann won't extend an invitation to them, one of her colleagues should. Meanwhile, let Scalia speak.

Comments

[RyanXXX]

Seems these "new" Republicans are certainly talking the talk when it comes to the constitution. Of course, Scalia is a hypocrite and a hack, but still.

THREADJACK!

American citizen detained overseas, taken to secret prison site, tortured, and then put on U.S. no-fly list. Federal Government: "no comment."

http://www.nytimes.com/2011/01.....=2&hp;
http://www.salon.com/news/opinion/glenn_greenwald/

[RyanXXX]

He hasn't been charged with anything, I'll add

[Team Blue]

If he was against us, he deserves it.

[P Brooks]

We disagree with many of Scalia's views, such as his archaic belief that women aren't protected against discrimination by the 14th Amendment.

I'm going to go out on my favorite speculative limb and assume this is a gross mischaracterization of what Scalia actually said/thinks.

[Jingles]

http://www.callawyer.com/story.....amp;evid=1

[Jingles]

God damn it.
linky

[bubba]

So Scalia says that the 14th does not automatically prohibit sex discrimination, but that the legislature has the authority to prohibit sex descrimination.

What a bastard.

[Brett L]

Actually, I think his point was that women weren't full citizens when the 14th was ratified, and that 19 only gave voting rights, not conferring "full citizenship" as the 14th did. I guess this would also affect age discrimination for persons 18-21 as well.

[Courr?ges]

It's a misphrasing of what he believes. Scalia's belief (which is correct) is that gender was never intended to be a protected class under the equal protection clause, and that modern attempts to shoehorn gender into the equal protection clause are wrong because nobody understood the equal protection clause that way at the time it was ratified.

However, to say "the 14th Amendment doesn't apply to women" sounds like women are simply excluded from any protections under the equal protection clause, when the reality is that gender is simply excluded a protected category. Subtle, but different.

[MNG]

I think this is a good case of why original expectations jurisprudence is so limited. The text says states cannot "deny to any person within its jurisdiction the equal protection of the laws." All we need to do is understand what "person" and "equal protection of the laws" actually means, as opposed to how ratifiers thought it meant and should be applied, to see that women, being persons, should have equal protection of the laws.

As someone pointed out there the Congress that put forward the 14th had segregated seating, they certainly would not have "understood" segregation as violating equal protection. They misunderstood, and we should not be bound by their misunderstanding.

[Steve]

...deny to any person within its jurisdiction the equal protection of the laws.

The original intent was for this statute to give black men the same protections as white men and black women the same protections as white women.

The plain text understanding of this amendment thus applies to all persons "within its (US) jurisdiction," no matter their race. So, even though it was not the intent to apply it to Arabs for instance, the text encompasses them. Intent is just a starting point.

[Courr?ges]

MNG,

All we need to do is understand what "person" and "equal protection of the laws" actually means, as opposed to how ratifiers thought it meant and should be applied, to see that women, being persons, should have equal protection of the laws.

You see, simply saying "everyone has a right to be treated equally under the law" doesn't really mean anything relative to categorizations. Every crime identifies a class of persons and treats them unequally. Laws that involve any kind of merit (like those governing public employment) discriminate against those who lack merit. The reason why we have to talk about original understanding with respect to the equal protection clause is because it becomes either meaningless or absurd when read without context.

So yes, women are guaranteed equal protection under the law, but as individual citizens, not as a group. Accordingly, the equal protection clause says nothing about gender discrimination.

[Tony]

Nope. It's kind of bizarre, though he does have a mote of a point when he says "nobody voted for that."

The thing is, it could be that people voted for it without realizing it. The text does not refer to specific demographics, only "persons." Are women not persons? If they came to be included as full citizens in the eyes of society (and particularly in the eyes of the courts), then I don't see what choice there is but to apply the 14th to women. Scalia's problem is he's not relying on the text and the text alone--he's relying on an apparent psychic connection to the dead authors of the document.

[MNG]

+1

[Courr?ges]

Tony,

Sure, the equal protection clause applies to women. But it doesn't apply to all demographics and classifications, just to all "persons." Accordingly, the government can't arbitrarily decide not to protect my property while protecting everyone else's, nor can the police decide that they'll respond to everyone's calls but mine. However, the government can legally discriminate against a group of people, excluding those categories that were understood to be forbidden at the time of ratification.

Now, I'll concede that the equal protection clause was poorly drafted, but words are just vehicles for conveying ideas, and people at the time of ratification understood the words a certain way, and that's what was passed into law. The alternative is to believe that the government can't distinguish between any human characteristic whatsoever, which necessitates virtual anarchy, an absurd result, and the basic rules of legal interpretation prohibit reading a legal text to where it leads to absurd results.

[zoltan]

It's the difference between denying a woman the right to vote and denying a woman access to a private golf club. LA Times would like to conflate the two.

[Wind Rider]

Antonin may have some goofy ideas, but with that being the case, it seems strange that 'liberal critics' would basically just want him to STFU. If they really wanted to drive the point home, one would think they'd be facilitating him to run his yap as freely and as often as possible, and give it the widest dissemination they could to help make their case. If they really had a case. Or any sense. Or anything but partisan outrageous outrage that they aren't the objects of the affections and worship of the unenlightened masses that they surely were placed on this earth to save from themselves.

[ClubMedSux]

I can't help but wonder if the liberals who are hemming and hawing about the politicization of the courts were also hemming and hawing when the president publicly admonished the Supreme Court for their decision in Citizen's United.

Okay, I don't wonder at all because the answer is painfully obvious.

[Tony]

The president is a politician...

[Pip]

Only for two more years.

[ClubMedSux]

Wait, I'm unclear on this... The president heads the executive; Scalia (along with his fellow justices) heads the judiciary. How is it okay when one attempts to influence the other but not vice versa?

[ClubMedSux]

And for the record, I can't stand Scalia, Bachmann OR Obama.

[Tony]

The judicial branch is supposed to be apolitical. The SC is a highly undemocratic and elitist organization, so it depends highly on credibility, which is diminished if it becomes another partisan branch. Arguably this happened a long time ago, imo when presidents started appointing Federalist Society ideologues who seem to think it's their job to advance the Republican cause, then lie about it and pretend they're objective jurists.

[Warren Court]

*sigh* The Court used to be so pure.

[Chief Justice John Marshall]

"a long time ago ... appointing Federalist Society ideologues"

Meanwhile in the real world, the Federalist Society has only been around since 1982; hardly "a long time ago" in the context of the American court system, especially considering that the Supreme Court has been highly politicized since the beginning when I ruled in favor of Federalist Party policy in McCulloch v. Maryland.

[Ruth Bader Ginsburg]

No doubt as to MY political allegiance!

[Karl Marx]

Patience, Ruth.

[marlok]

If only we had a Democrat like FDR who knew how to keep the SC outside of partisan politics.

[Brian from Texas]

Scalia.....don't even get me started on that hypocritical, arrogant little bastard.

[J_L_B]

With the constant drumming of race, and to a lesser extent, gender, in K-12 American History, it's interesting to note the degree to which the Constitution avoids the topics. Only when pushed to the forefront as in the sufferage movement, did it finally concede. Even then, one might wonder if the founders understood the contradictions of a free society and relegating some of its members to second or third class status; perhaps they believed excluding these labels from the document would allow their more enlightened descendants to explore the idea of freedom for all.

[Oh, the irony...]

The SC is a highly undemocratic and elitist organization

...said an elitist.

[Tony]

wtf is that supposed to mean. It's 9 unelected people who play a large role in policymaking. What's not elitist about it? I'm not using the term as an insult. Only morons do that.

[Forbes]

Gee, all along I thought Scalia was saying that--in this example, the 14th--doesn't say what many commonly believe it to say, as to a Constitutional right, but there is nothing preventing legislatures from granting such legislatively. Or by ammendment, as in the 14th, et al.

ISTM, many folks that can't see their agenda passed legislatively, look to the courts for creative interpretation in order to impose their policy preferences accordingly. I'd much prefer a conservative court that understood limitations--and the limitations (enumerated powers) as set out in the Constitution, than the so-called liberal, living constitution that is so maleable that it's worthless as a piece of paper. YRMV.

[XR4L]

+