Justice Scalia, women, & the equal protection clause

Discussion in 'What's On Your Mind?' started by Sunny Goth, Jun 20, 2012.

  1. Sunny Goth

    Sunny Goth Original Member Coach

    Even though the article spends a lot of time discussing Roe v. Wade, the more important issue is Scalia's view about how the Equal Protection Clause applies to women. (I propose we don't discuss abortion in this thread, k?)

    He's got a new book coming out and pushes the idea that it's okay to discriminate against women. He says: "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't."

    ??????? WTF ???????

    I guess he forgot about the 14th Amendment which reads: Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Here are the articles I was reading that sent me into a state of shock:

    From a 2011 interview: Scalia: Women Don't Have Constitutional Protection Against Discrimination

    Scalia Says Roe v. Wade Does Not Have Precedential Value <-- ignore that this decision is about abortion, think about what would happen if Justices decided willy nilly that cases they didn't like shouldn't be used as precedent.

    This quote pretty much sums up my feelings about it as well:

    "In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."
  2. Lisa Simeone

    Lisa Simeone Original Member

    Let's see, how do you say in English?

    (expletive deleted) Scalia.
  3. Frank

    Frank Original Member

    Not even with a strap-on...
  4. nachtnebel

    nachtnebel Original Member

    Bad past decisions can and should be overturned. Roe v Wade being one of them. That particular one is not about protecting against discrimination against women, IMO, it's about forcing the states to legalize violence against the most helpless.

    But, yeah, it is a hopelessly mixed bag with all these judges. Scalia right on many issues, yet supports a police state in all its glory. It is foolish for us to rely on nine black robed monkeys for our freedoms. They are not capable. Arguably, no collection of nine humans is capable, especially when by definition they are biased in favor of the federal cause. When it comes down to it, the rejection of the fully controlled police state will have to come through very strong expressions of political will, coupled with severe loss of federal power and prestige.
  5. Mike

    Mike Founding Member Coach

    That's 50% Italian.

    More to the point (and 100% English since "Brown" is not an Italian name), why can't Brown v. Board of Education be generalized in a modern context to mandate equality for everyone? It's based on the equal protection clause (14th amendment), which would to be to be a good basis for such a leap. It took 90 years to come up with Brown, what's another 60?

    Historically sexual discrimination has been very much allowed, and the only amendment passed specifically in that area didn't go any farther than voting rights.

    Roe v. Wade just stinks.
  6. Sunny Goth

    Sunny Goth Original Member Coach

    That's not completely true. Scalia isn't fond of blood tests and he's not wild about thermal imaging. He's not consistent....
  7. Sunny Goth

    Sunny Goth Original Member Coach

    Why can't it be generalized? Now that I've stopped laughing (with you, not at you).... You know that we lawyers like to split hairs. We need a case for each and every issue. We're like that. :)

    So wait. Because we've had sex discrimination in the past it's okay if we still do it??? Seriously? No, sorry. We have the equal protection clause and it's been used many, many times to quash discriminatory behavior.

    That wasn't my question or why I brought it up. Put abortion to the side. This is a controversial case that was decided way back in 1973. There were many cases that led up to it and many cases that came after it. It makes no sense (to me) to say that it has no value as precedent. And that is the issue that I brought up.
    Lisa Simeone likes this.
  8. Mike

    Mike Founding Member Coach

    I didn't say that.

    But it didn't get women the vote. It might have if they'd waited a few more decades (or longer). How patient are you?

    When discrimination is institutionalized, it's a lot harder to get it out of the system. Slavery only ended when it did because Lincoln forced the issue at a horrendous cost.

    But that was part of my answer.

    Doesn't change the fact that Roe v. Wade was a big leap, largely unwarranted, only passed 5-4 and only keeps surviving 5-4. It's days are probably numbered. If you want to build a house of cards, rely on Roe.

    This boils down to doing it the hard way by relying on the equal protection clause (personally, I don't see why it's hard -- it's a no-brainer -- but Scalia is obviously stumped) or the easier way (Roe) which is much more likely to collapse.
  9. nachtnebel

    nachtnebel Original Member

    yes, he voted well there, but then also voted for strip searches of unconvicted detainees arrested for trivial crimes such as walking a dog without a leash. and voted for random checkpoints. and apparently has no problem with the gropings-on at airports. None of them have, apparently.

    Lest this be portrayed as a simple conservative/liberal split, take a look at Schmerber, which allowed for forcible blood testing. That was under the Warren court. My point being that this institution of nine, whoever they may be, is an unreliable and untrustworthy arbiter of our freedoms and rights. We cannot leave things up to them as the ultimate arbiters but must also seek allies in the only institution that can stand between us and the federals in such matters.

    yeah, the states, the ones that one by one passed constitutional restrictions against what SCOTUS authorized in eminent domain over your property so another private party could profit. The ones that are resisting the individual mandate in Obama care no matter what SCOTUS rules, and so forth.

    yet, also, it is states that allow forced catheterization/blood takings, allow strip searches.... Acknowledged that this is a mixed bag. But what is far easier--getting a state to outlaw such things, or getting the federal government? Would a state resist the public outcry over the airports to the extent that the federals do?
  10. Sunny Goth

    Sunny Goth Original Member Coach

    I'm very patient for some things. For other things (like these issues), not so much.

    So very hard to know. It all depends on who is on the Court.

    I'm with you on that. Rely on the EPC.

    And yeah, Scalia is stumped -- not sure why this is so hard for him.
  11. Sunny Goth

    Sunny Goth Original Member Coach

    Yeah, very inconsistent.

    We don't yet know how the Court feels about gropings and strip searches at airports - they haven't ruled on these latest rules yet.

    And if Scalia was consistent (and I'm not holding my breath waiting for him to become that), he should vote to view gropes and strip searches unconstitutional. I think they fail the administrative search doctrine, as they are overly intrusive.

    When it comes to anything related to privacy, it's never a simple conservative/liberal split. ;)

    I think it depends on the state. Congress is not going to outlaw these things unless they really get pushed to do so.
  12. MaximumSisu

    MaximumSisu Requiescat in Pace

    I think it's the originalist and textualist approach that explains his opinions.
  13. Sunny Goth

    Sunny Goth Original Member Coach

    Yeah, but once an amendment is approved it becomes a part of the constitution - so it is texualist.

    I know he goes for originalist opinions, but even he acknowledges that once the constitution has been amended, it's part of the document.

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