Tuesday, January 4, 2011

The Unbearable Smugness of Scalia

Here’s a rule I learned the hard way practicing law for 23 years: If you’re going to be smug about anything, but particularly the law, you had better be painstakingly accurate when you talk about the thing you want to be smug about. Because otherwise you tend to look foolish. And to my surprise, the rule of painstaking-accuracy-when-being-smug applies not only to practicing lawyers like me – the day laborers of the law biz, you could say – but to Supreme Court Justices, too.

Take, for instance, these pearls of wisdom from Supreme Court Justice and (admittedly, I derive a certain perverse enjoyment from saying this) former University of Chicago law professor, Antonin Scalia:

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.

That answer came in response to a question regarding whether the Fourteenth Amendment, which, among other things, prohibits any state from “deny[ing] to any person within its jurisdiction equal protection of the laws” (U.S. Const. Amend. 14, § 1), applies to discrimination on the basis of sex or sexual orientation. And in answer to that question, Justice Scalia said the Constitution doesn’t prohibit discrimination on the basis of sex, adding for emphasis: “Nobody ever thought that that’s what it meant.”

You be the judge of whether that statement is smug; but if it’s painstaking accuracy you’re looking for, with or without smugness, you won’t find it in what Justice Scalia said.

I’ll be happy to explain, but first a word in Scalia’s defense: To the extent he meant the Constitution doesn’t prohibit private acts of discrimination, he’s right. That’s because aside from the Thirteen Amendment, which prohibits slavery, the Constitution generally does not regulate private behavior. See, e.g., Civil Rights Cases, 109 U.S. 3 (1883) (holding that Congress did not have the authority to outlaw private acts of discrimination under the Fourteenth Amendment.) And federal statutes prohibiting, for example, discrimination in employment or in public accommodations, are grounded not in the Equal Protection clause of the Fourteenth Amendment but in Congress’ power under Article I, Section 8, “[t]o regulate Commerce … among the several States.” See Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding various provisions of the Civil Rights Act of 1964 under the Commerce Clause).

But in his answer to the question whether the Fourteenth Amendment applies to sex discrimination, Scalia didn’t distinguish between private action and state action; and, in fact, the Fourteenth Amendment expressly prohibits certain types of discriminatory actions taken by state and local governments – that, of course, is what it means to say that a state cannot “deny to any person within its jurisdiction equal protection of the laws”: A state can’t apply its laws in a discriminatory manner. (Note, too, that the Supreme Court has long held that the Due Process Clause of the Fifth Amendment has an equal protection component, such that the federal government is equally barred from engaging in certain types of discrimination. See Bowling v. Sharpe, 347 U.S. 497 (1954).) So, presumably what Scalia was saying was: No, the Equal Protection Clause of the Fourteenth Amendment does not prohibit sex discrimination by state and local governments (and, by extension, neither does the equal protection component of the Fifth Amendment’s Due Process Clause prohibit sex discrimination by the federal government); and, further, that “Nobody ever thought that that’s what it meant.”

Which would be news to now-deceased Supreme Court Justice William Brennan, who penned the Court’s opinions in Frontiero v. Richardson, 411 U.S. 677 (1973) and Craig v. Boren, 429 U.S. 190 (1976), both of which held that government discrimination on the basis of sex does violate the equal protection provisions of the federal Constitution. And so contrary to Justice Scalia’s statement that [n]obody ever thought” the Fourteenth Amendment meant the government cannot discriminate on the basis of sex, Justice Brennan and a majority of the Court thought exactly that:

Analysis [of a constitutional challenge to Oklahoma’s restrictions on selling 3.2% beer] may appropriately begin with the reminder that Reed [v. Reed, 404 U.S. 71 (1971)] emphasized that statutory classifications that distinguish between males and females are “subject to scrutiny under the Equal Protection Clause.” 404 U.S., at 75 . To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.

Craig, 429 U.S. at 197. Which is fancy lawyer talk for: Yes, the Equal Protection Clause prohibits state-sanctioned gender discrimination – at least where the gender lines the state attempts to draw fail to “serve important governmental objectives” and are not “substantially related to achievement of those objectives.”

And Justice Scalia’s overly broad assertion that the Fourteenth Amendment simply does not apply to sex discrimination is even further off the mark when you consider that the Equal Protection Clause bars any form of irrational government discrimination, whether it’s based on race, gender or any other classification. In other words, when the government discriminates on the basis of certain types of “suspect” classifications (like race), it is held to a particularly high standard: Almost no race-based forms of discrimination would ever withstand constitutional scrutiny. And the cases cited above (Frontiero and Craig) stand for the proposition that sex is likewise a “suspect” classification. But even aside from suspect classifications, the government cannot, under the Equal Protection Clause, treat similarly situated groups of individuals differently, if that disparate treatment is not “rationally related to a legitimate state interest.” City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). For example, the government could not decide to tax people who live in even numbered houses at one rate and to tax people who live in odd numbered houses at a different rate, because there would be no rational basis for that distinction, irrespective of the fact that the evenness or oddness of your street address isn’t a suspect classification.

So, even if the Court hadn’t decided that gender was a suspect classification requiring a higher level of judicial scrutiny under the Fourteenth Amendment (which it the Court did, in fact, decide), any form of irrational discrimination based on sex would have violated the Equal Protection Clause anyway. And the funny thing is, in his answer to the equal protection question, Justice Scalia not only incorrectly said that the Fourteenth Amendment doesn’t apply to sex discrimination, he also said it doesn’t apply to discrimination on the basis of sexual orientation. Yet in Lawrence v. Texas, 539 U.S. 538 (2003), the Court explicitly held that Texas’ anti-sodomy laws violated the equal protection rights of gays, because … wait for it … there is no rational basis to treat gays differently from straight people in the application of sex crimes laws. Meaning that even though the Court has yet to determine that sexual orientation is a suspect classification in an of itself, the Court has held that the Equal Protection Clause prohibits irrational discrimination against gays and lesbians.

All of which means that what Justice Scalia said about the applicability of the Fourteenth Amendment’s Equal Protection Clause has been roundly rejected by the Supreme Court, repeatedly, for more than thirty years.

Ouch.

© 2011 David P. von Ebers. All rights reserved.

19 comments:

  1. A well-worded takedown of a smug and intellectually-dishonest crank. Bravo.

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  2. Thank you. I knew I had to call a lawyer, because Scalia's statement was just so wrong, but not being an expert I can't work out the legal details.

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  3. If you have time to come over to Kmareka, we are in the middle of a hot and heavy with some guys who say there's no discrimination to worry about...

    http://kmareka.com/2011/01/04/equal-rights-amendment-needed/

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  4. Let me start by saying that I am a liberal and I agree with you and Justice Brennan et al., regarding the meaning of the 14th Amendment but this response to Scalia misses his point. He doesn't think that nobody interpreting the 14th Amendment decades after it's passage believes it covers sex discrimination. He knows that there is precedent reading sex discrimination into the 14th Amendment. He is arguing instead that the Civil Rights Amendments were passed in conjunction with and for the purpose of the abolition of slavery and were meant to preclude any post-slavery discrimination based on race. It is his belief that the people voting on the 14th Amendment didn't discuss - much less intend to vote on - equal protection based on sex or sexual orientation or whether your house is odd- or even-numbered.

    As I said, I think this is a very poor reading of what has to be considered intentionally broad language but if we are going to disagree with Scalia we at least have to properly articulate his premises.

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  5. Prey tell, if the 14th Amendment (1868), as an original matter (before being extended by the Court over half a century later), applied to women, why was it necessary to pass the 19th Amendment, women's suffrage, in 1920?

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  6. Nice of you to make an argument Justice Scalia never made. He didn’t limit his “nobody ever thought that that’s what it meant” comment to the members of Congress who voted for the 14th Amendment (you’re assuming that’s what he meant because the questioner suggested – wrongly, by the way – that at the time of the debates on the 14th Amendment no one in Congress considered sex discrimination). Scalia’s “nobody ever thought that that’s what it meant” comment comes right after the completely incorrect statement that the Constitution doesn’t prevent sex discrimination. He’s saying nobody ever thought the Constitution prohibited sex discrimination, and his statement is just plain wrong. For decades the Supreme Court has held to the contrary. If by “nobody” Scalia meant “none of the members of Congress who voted for the 14th Amendment,” his comment was both inartful and factually incorrect. As I understand it, there were members of Congress who favored broader legal protections for women – and for other groups – and that’s one of the reasons Congress settled on the broader language of “equal protection of the law.” That is to say, Congress purposefully left it to the courts to decide whether disparate treatment of similarly situated groups violated “equal protection,” and they were well aware of the fact that the courts might, in fact, conclude that gender discrimination violated equal protection in the right circumstances. Again, even if gender wasn’t considered a “suspect” classification, the Fourteenth Amendment always prohibited irrational discrimination on any basis, including gender.

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  7. Nemo, the 14th Amendment has nothing to do with voting rights. The 15th Amendment gave freed slaves the right to vote, and it’s explicitly limited to race, color and former slave status: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” That’s why the 19th Amendment was necessary: “The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”

    All of which proves the point: If Congress had intended the 14th Amendment only to prohibit racial discrimination, it would have said so explicitly. In fact, just prior to the adoption of the 14th Amendment Congress passed a law expressly outlawing racial discrimination in the former slave states, so it knew how to do that if that’s what it intended to do. The choice of the term “equal protection of the laws” was designed specifically to encompass other types of invidious discrimination.

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  8. In the context of the question that Scalia was asked "nobody" refers to the "nobody"s that were involved in ratifying the 14th Amendment, end of story. You wave away the question he was asked - you don't even quote it - because you don't think it matters. I think it is all that matters. As Jack Balkin wrote "throughout the interview Scalia seems to assume that the original meaning of the Constitution is pretty much identical to how the adopting generation would have applied its provisions". That is exactly how the question was addressed to him and it is in line with how Scalia has always advocated interpreting the Constitution.

    You think this is sloppy, careless argumentation - and in a soundbite culture it probably is - but it is an accurate summary of his views on how the 14th Amendment came to be and a reasonable shorthand to use to answer to the specific question he was asked. Scalia is not carelessly omitting Craig v. Boren from the historical record, he is claiming that CvB and the like have no genuine support in the Constitution because of the intent of the ratifying Congress. His vote in VMI and similar cases make clear that this is how he feels. Bringing up precedent to argue with his Originalism is besides the point. You are using a line of cases that apparently began in the 1950's and he is arguing from a record that lies exclusively in the 1860s.

    You claim in your response to me - though not in the main post - that there is support in the contemporaneous record for the belief that the 14th Amendment should apply to sex discrimination as well, so Scalia is wrong on the facts. I don't pretend to have any idea who is right about this; I'm not a Constitutional historian. (Though Balkin, in the link above suggests a reading of original intent more expansive than Scalia's but less expansive than Brennan textual interpretation.) But to the extent that Scalia has been careless in his statement of historical fact, you haven't pointed to anything that shows it.

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  9. My long comment didn't publish. I'm not writing it again. The world will continue spinning, unconcerned.

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  10. What do you make of Scalia's dissents in United States v. Virginia (1995) and J.E.B. v. Alabama (1994)?

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  11. I'm a non-lawyer. I remember the day the Equal Rights Amendment went down for good, and how bad I felt that we were not able to put our rights into the Constitution. Judge Scalia seems to be saying we'll just have to fight it out state by state.
    I linked to you excellent post here-
    http://kmareka.com/2011/01/05/call-a-lawyer/
    Hope you don't mind, but from where I stand the broad meaning is unmistakeable.

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  12. Ugarles: For some reason, your last comment did not publish, but I got it by e-mail from Blogger. If you saved it, perhaps you can re-post it. Otherwise, if it doesn’t show up in the thread after awhile I’ll cut and paste it from the e-mail I received.

    I will certainly take a look at Jack Balkin’s piece. He is one of the best legal bloggers around (although definitely more politically conservative than I am); so as a general rule I trust his judgment. As for the particular quote, I simply did not read it the way you do; but the broader point is Justice Scalia’s comments are intentionally provocative, and that’s why he so often overstates his own case.

    But here’s the thing: The Supreme Court has never said the Equal Protection Clause was only meant to apply to, or prohibit, certain kinds of state discrimination. Although he doesn’t say so explicitly, the implication of Scalia’s comment is that the Equal Protection Clause was only meant to ban official forms of racial discrimination – but if that were true Congress would have said so explicitly. Instead, a far more rational reading of the Equal Protection Clause is that it meant to ban all forms of irrational discrimination between similarly situated individuals. The “rational basis” test is the base line under 14th Amendment: Anytime the government treats two individuals or two groups of individuals differently, there has to be a rational basis for that distinction. Later cases said that there were certain types of “suspect” classifications – like race, nationality, religion and so forth – that resulted in a higher level of scrutiny; but that doesn’t obliterate the rational basis test that applies to all other forms of discrimination. Note that many of the early Equal Protection Clause cases dealt with things like government regulations that discriminated in favor of or against certain businesses. See, e.g., Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). Of course, the states usually won those cases because they usually could come up with a rational basis for the regulatory “discrimination,” but the Court still scrutinized it under the Equal Protection Clause.

    Cases like Reed and Craig v. Boren said that sex is also a suspect classification – meaning that state-sponsored sex discrimination was subject to higher scrutiny, like race discrimination – but those cases were not saying that all of the sudden the 14th Amendment applied to sex discrimination where it had never been applied before. The difference was applying stricter scrutiny, rather than the “rational basis” test, to sex discrimination cases.

    So even apart from the question whether members of Congress discussed (or thought about) sex discrimination at the time the 14th Amendment was ratified, it’s hard to imagine that the day after it became law states could nonetheless discriminate irrationally on the basis of sex. If states decided to subject women to higher rates of taxation, for example, or determined that women could only walk on one side of the street whereas men could walk on both sides of the street – sex based differences without any rational basis – it seems to me those laws would have been stricken down under the Equal Protection laws right off the bat. And if that’s not the case, I’d love to see some historical evidence of it.

    But so the point is, so far as I can tell the Court has always accepted the “rational basis” test as the baseline test to determine if discriminatory state action passed muster under the Equal Protection Clause. Indeed, my very conservative Constitutional Law professor back in law school described the “rational basis” test as “traditional equal protection analysis,” as opposed to the “strict scrutiny” analysis that came later when the Court began to talk about suspect classifications. So, anyway, at a minimum, the rational basis test would applied to sex discrimination long before the Court determined sex was a suspect classification.

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  13. Spectral Ev: Thanks for the link! I really appreciate the kind words.

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  14. This is the comment Urgales attempted to post, to which my comment at Jan. 6, 2011 at 10:44 a.m. is a response. Not sure why Urgales’ comment didn’t post, but I wanted to make sure readers could see it:

    In the context of the question that Scalia was asked "nobody" refers to the "nobody"s that were involved in ratifying the 14th Amendment, end of story. You wave away the question he was asked - you don't even quote it - because you don't think it matters. I think it is all that matters. As Jack Balkin wrote "throughout the interview Scalia seems to assume that the original meaning of the Constitution is pretty much identical to how the adopting generation would have applied its provisions". That is exactly how the question was addressed to him and it is in line with how Scalia has always advocated interpreting the Constitution.

    You think this is sloppy, careless argumentation - and in a soundbite culture it probably is - but it is an accurate summary of his views on how the 14th Amendment came to be and a reasonable shorthand to use to answer to the specific question he was asked. Scalia is not carelessly omitting Craig v. Boren from the historical record, he is claiming that CvB and the like have no genuine support in the Constitution because of the intent of the ratifying Congress. His vote in VMI and similar cases make clear that this is how he feels. Bringing up precedent to argue with his Originalism is besides the point. You are using a line of cases that apparently began in the 1950's and he is arguing from a record that lies exclusively in the 1860s.

    You claim in your response to me - though not in the main post - that there is support in the contemporaneous record for the belief that the 14th Amendment should apply to sex discrimination as well, so Scalia is wrong on the facts. I don't pretend to have any idea who is right about this; I'm not a Constitutional historian. (Though Balkin, in the link above suggests a reading of original intent more expansive than Scalia's but less expansive than Brennan textual interpretation.) But to the extent that Scalia has been careless in his statement of historical fact, you haven't pointed to anything that shows it.

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  15. Thanks for reposting my comment. As to your reply:

    Now we're talking! I think Scalia would still argue that the elevated scrutiny has no constitutional support but (a) I don't think he can fairly claim that business tax discrimination was covered by the reconstruction amendments but sex discrimination was not and (b) you are right that he was intentionally overstating his case in this regard in colloquial language in order to be controversial.

    Like I said before, we don't disagree about the underlying claim: that Scalia is a dick and a buffoon who likes to say outrageous things to infuriate liberals. My beef was essentially that the evidence you marshaled to support that claim seemed besides the point. The rational-basis line of cases I think, are a much better foundation for the argument that Scalia was way off the reservation.

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  16. I will say this: this exchange definitely sharpened and refined my arguments, and that’s always a good thing. I could easily have taken my last response to you and made a blog post out of that, and perhaps that’s where I should have started.

    If I have the time I will still read Balkin’s post in detail, but I note this comment in particular:

    “The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.”

    That’s more or less consistent with my understanding. I also recall that at the time the 14th and 15th Amendment were being discussed, there was a movement afoot to give women the right to vote. Although that did not occur at the time, the 15th Amendment being limited to race, not gender, I believe my constitutional history prof in college said that that led, in part, to a “compromise” on the language of the Equal Protection Clause – not that Congress specifically intended (or didn’t intend) it to cover gender discrimination, but that Congress opted for the broader language to enable the courts to decide what did or did not qualify as “equal protection of the laws.”

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  17. If the likes of Scalia had their way then the relevant meaning of the 14th amendment and ALL of the anti-salvery amendments would have vanished around say...1965...when the last formal vestiges of Jim Crow were legislated away. Then we could have saved lots of ink reprinting those little books that Speaker Boehner is passing out on the floor of the House by skipping a few pages. But that would wrongly pre-suppose that the writers of Constitutional law (many of them lawyers) were not immersed in a thousand year old legal culture that reasons by analogy from a set of first principles (a Constitution and its Amendments)and that they saw themselves as only clearing up a few loose ends from the Civil War instead of turning the rudder on an enormous ship of State that had run aground due to some colossal errors in Navigation.

    No member of the ratifying group could have POSSIBLY had a clear notion of "gender equality" in an age in which medicine made reproduction optional, in which universal education has actually FAVORED the income earning ability of women in an economy no longer based on "brawn," or in an era in which the notion of "homosexuality" didn't even exist in the general culture as a description or term of identity.

    The amendments wisely and generally address the error in our nation's founding...that some "persons"...were less so. And that led to catastrophe. The role of reason in jurisprudence around the antislavery amendments should be to study the facts of a situation and see how closely they resemble, if only by analogy, the errors of the Founders, and turn that rudder again towards the destination of the Model Republic.

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  18. Joel, I address some of these issues in my later post on the issue. I think you are correct that, in general, the post-Civil War amendments were concerned with overturning the Dred Scott decision and securing political liberties for freed slaves, but the 14th Amendment does much more than that. Note that the 13th and 15th Amendments deal directly with race and involuntary servitude; but Congress chose not to limit the 14th Amendment to those issues – although it very clearly did eliminate the so-called three-fifths rule and it did explicitly overrule Dred Scott. But the 14th Amendment also was intended to make the essential provisions of the Bill of Rights applicable to the states through the Due Process and Privileges and Immunities Clauses (the Supreme Court badly misread the latter, unfortunately); and there’s little doubt that the “equal protection” language was meant to do more than outlaw state-sponsored race discrimination.

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