Justice Scalia’s Flip-Flop

Justice Antonin Scalia is fond of saying that constitutional interpretation is easy as pie – you simply follow the text of the Constitution and you reach conservative results – but the Supreme Court’s most famous originalist is notoriously inconsistent about applying this textualist approach, particularly when the Constitution’s text and history point in a progressive direction.  A good example is the Fourteenth Amendment’s guarantee of the equal protection of the laws.  The Equal Protection Clause was written to secure equal rights under the law for all persons, redeeming the Constitution from the sin of slavery and bringing the Constitution back in line with the Declaration of Independence.  In the process, the Framers of the Amendment perfected the Declaration, writing into the text that all “persons” are equal, not just that “all men are created equal.”  Women plainly are included within the Equal Protection Clause’s broad mandate of equal rights under the law.  While Section 2 of the Fourteenth Amendment sanctioned sex discrimination in voting, the Nineteenth Amendment repealed this constitutional sanction and gave women the right to vote. In ratifying the Nineteenth Amendment, “We the People” decided and decreed that women must be treated as full and equal citizens with the same right to vote and participate in the public sphere as men.  (For additional analysis, see here).

Earlier this year, in an interview with Prof. Calvin Massey published in Cal Lawyer, Justice Scalia took the position that the Equal Protection Clause does not prohibit sex discrimination.  Agreeing with Prof. Massey that “we’ve gone off in error in applying the Fourteenth Amendment,” Justice Scalia observed:  “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.”  So much for following the text.

Wednesday, in a remarkable hearing in which Justice Scalia and Justice Stephen Breyer testified before the Senate Judiciary Committee on the role of judges under our Constitution, Justice Scalia backtracked from his earlier position.  First, during questioning by Senator Dianne Feinstein about whether the  Fourteenth Amendment’s guarantees apply to women, Justice Scalia said the critical question was the meaning of “equal protection of the laws,” and derided the suggestion that equal protection prohibited discrimination against women, raising the specter of unisex toilets.  But, when pressed about the Cal Lawyer interview, Justice Scalia backed away from it, and refused to defend his argument that the Constitution does not prohibit sex discrimination.  In a deft move to deflect Senator Feinstein’s questions about the interview, Justice Scalia made the banal point that the Fourteenth Amendment “does not apply to private discrimination,” and that his comments earlier this year did not concern discrimination by the government.  Justice Scalia, who is usually forthright in defending his often controversial views of the Constitution, resorted to obfuscation.

Justice Scalia’s response may have been a brilliant move to shut down Senator Feinstein’s questioning, but no one should be fooled by the answer.  In Justice Scalia’s interview earlier this year, his comments were unequivocal – the Fourteenth Amendment’s guarantee of the equal protection of the laws does not prohibit sex discrimination, period.   Indeed, last fall, just a few months before the interview, Justice Scalia gave at speech at the University of Hastings Law School in which he criticized the last forty years of Supreme Court rulings holding unconstitutional state laws that discriminate against women as a “modern invention” inconsistent with the original understanding of the Fourteenth Amendment.

Usually in debates with Justice Breyer, Justice Scalia makes constitutional interpretation seem like a piece of cake, while Justice Breyer delights in how complicated the enterprise is.  But yesterday, on the question of the meaning of the Fourteenth Amendment, Justice Breyer needed only a few words to affirm that women are persons plainly protected from discrimination by the text of the Fourteenth Amendment, while Justice Scalia had to resort to obfuscation to get around the fact that the Fourteenth Amendment’s text provides a universal guarantee of equality for all persons.  On the test of fidelity to the Constitution’s text, Justice Scalia came up sorely lacking.