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Thursday, September 23, 2010

Justice Scalia at Hastings: Sex, Lies and Originalism

When I last chatted with you all, I remarked upon Justice Scalia's remarks upon the dedication of our wonderful new building here at Marquette. I once again bring news of Nino.

During a question and answer period at a Constitution Day event at Hastings College of Law, Justice Scalia announced the view that the Constitution does not forbid sex discrimination. His argument, I take it, is that the original public understanding of the equal protection guarantee was that is was limited to race and that no one imagined that it was intended to constitutionalize a particular view of gender roles.

The day before I had been asked to guest lecture in a colleagues' course on Law and Social Change. The idea was apparently to bring in a real life conservative to talk about judicial restraint. I spent a fair amount of time on Justice Scalia's textualism with which these latest remarks are in, I think it is fair to say, tension. If the equal protection guarantee was to be limited to race, why not say so? Writing at Balkanization, David Gans certainly seems to thinks so.

The answer, I suppose, is that an equal protection clause that might apply to other things could apply to anything. Courts have traditionally tried to limit its scope through the devices of multi-tiered scrutiny and through the identification of suspect classes that are thought to be situated in ways that justify more intensive examination of distinctions that are claimed to burden them. Few  seem to believe that the extension of some form of heightened scrutiny to distinctions drawn on the basis of gender have proven unworkable or resulted in significant frustration of the popular will, so what's the problem?

My guess is that he Scalia's narrow concern is not so much about sex discrimination as it is about sexual orientation discrimination. In particular, I suspect that he is troubled by the use of changed gender roles to argue that the state can attribute no significance to gender. In Perry v. Schwarzenegger, for example, the district court used legal developments such as the abolition of coverture to argue that, because we don't have legally mandated gender roles, gender no longer has much to do with marriage.

My own sense in reading Perry was that the court had assumed the triumph of equality feminism over difference feminism. It is one thing to say that women are free to participate equally in public life. But it is yet another to say that there are not certain differences between men and women that might justify structuring certain institutions in a particular way thought to accommodate - or, perhaps more accurately - reconcile those differences. If men and women experience sexual desire in different ways and, therefore, have, in anthropological terms, differing "mating strategies" or if they experience parenthood in differing ways, then perhaps the state will wish to structure marriage in a way that accomodates or reconciles those differences.

These views cannot, in my view, be dismissed as "neanderthal" (many people experience them as significant factors in their lives) or as calling for a return of the hausfrau relegated to kirche, kuche und kinder. (Phrasing it in that way would also risk the invocation of Godwin's Law.)

Of course, they may not get you to a justification for the prohibition of same sex marriage. One might argue that, if same sex couples, due to inculturation or otherwise, want to buy into an institution shaped by the recognition of gender differences, perhaps they should be permitted to so. We are now at that curious point in the same sex marriage in which the views of conservatives and, for lack of a better word, radicals begin to proceed from the same set of presuppositions. Conservatives worry that same sex marriage will change the cultural and legal norms of marriage. Radicals hope that it will.

Scalia's broader concern is his oft-stated distrust of the views of "cultural elites." In his view, permitting courts to discern contemporary standards is a bit like the old line, about the nineteenth century modernist  protestant seeking the authentic Jesus. He tends to find Him at the bottom of a well and is pleased to note the resemblance.

I suppose this is no insight. It is no mystery as to how Scalia would view the district court's decision in Perry. But I don't know that it means, as Gans and some of the commenters at Balkinization seem to think, that Scalia's constitutional method is incoherent or hypocritical. To be sure, it leaves room for manuever. If one wishes to say that the original public understanding of the equal protection clause was that it had to do with race while abandoning the idea of the original expected application (i.e., that it wouldn't require desegregation of schools), one needs to justify the level of generality at which this "original public understanding" is pegged. One also needs to justify, as Gans point out, the view that the racial equality mandated by the clause can be reduced to color blindedness and does not extend to ameliorative measures designed to repair the harms to blacks brought about by slavery.

But to ask those questions, it seems to me, calls for extending the conversation and not for ending it by assuming that there can be no answers.


Posted by Richard Esenberg on September 23, 2010 at 04:45 PM in Constitutional thoughts, Gender | Permalink


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I would think that the notion that "people" do not take Scalia seriously itself offers some (albeit) indirect support for his position. My guess is that most "people" take Scalia quite seriously - as well they should. He's got a lot more influence on the law than you or I or, for that matter, anyone who has ever posted on any lawprawfs blog who is not among his colleagues. Finding potential inconsistencies in an interpretive approach or its application by any individual justice is easy. For example, what if a proponent of popular constitutionalism or the value of ascertaining contemporary values affirms to uphold the result in Perry in the face of the large number of states who have contemporaneously expressed opposition to its outcome? I understand that arguments can be made in support of such a result but asking the question doesn't answer it.

Posted by: Rick Esenberg | Sep 27, 2010 5:53:04 PM

The "law profession culture" bit is the sort of thing that leads people to not take him seriously. The idea that "law professors" or whatever is what is driving things here, namely, applying the text to sexual equality is fairly underinclusive. To use a law profession term.

He has to explain how "some form of objective public understanding" translates to no sexual discrimination being covered. Forget about the 19A or some later developments. There were various federal constitutional rights that women had at the time. If the federal government or some outlier state deprived them of said right, such as trial by jury or whatnot, merely because they were a woman, they would have a serious equal protection claim.

Scalia not joining Thomas' opinion in McDonald, however, underlines that he is not consistent. Forget about using emotion laden words like "hypocrite." He just is not consistent but it doesn't stop him from providing emotional laden, often simplistic talking points that appeal to certain people OUTSIDE of the legal culture, including politicians who deem him their model justice.

Well, anyway. Enough about that.

Posted by: Joe | Sep 27, 2010 12:44:34 AM

Well, the last thing that I would want to suggest is a default rule that an ambiguous text must be read broadly. The "tension" I was musing about is between an emphasis on the text and the need to cabin broad text. It is between a trenchant criticism of "legislative history" and the need to contextualize broad commands to give them a meaning that is not anything and, therefore, nothing.

Some of the reaction to Scalia's comment has been to call him a "hypocrite." He realizes that the text needs to be subjected to some sort of external limitation and there are competing interpretations to the external limitations, so how can he claim that textualism solves anything? He fixes the original public understanding in a way that supports his preferred result.

I don't think that's so. To pursue Gan's point, there is a difference between Reconstruction era remedial measures and ongoing affirmative action.

My own view is that seeking some form of objective public understanding is a more constrainted and disciplined interpretive method and easier to reconcile with the anti-democratic aspects of judicial review than looking for "emerging" constitutional themes, such as an overarching notion of "freedom from gender" implied from things like the 19th Amendment and cultural and legal developments in favor of gender equality. I think Scalia's concern with the way in which they can be manipulated to further the presuppositions of what he calls the law profession culture.

The point of my musing (perhaps poorly made) was to suggest that the questions raised by Gans and others are important but not dispositive. My discussion of what I gather to be Scalia's concerns about the uses of was intended to illustrate what "the problem" with a broader reading might be.

Posted by: Rick Esenberg | Sep 25, 2010 1:16:22 PM


Posted by: Joe | Sep 25, 2010 11:05:52 AM

Isn't a bit odd that Scalia is making these comments, when the Court has granted cert. on case (United States v. Villar? I believe) dealing with the application of the equal protection clause and Congress's power to regulate immigration?

Posted by: Anon | Sep 25, 2010 10:39:22 AM

I'm not sure exactly what to make of Prof. Kerr's comment.

Let's put it this way. What exactly is Justice Scalia's position on the equal protection clause? Not some overreaching "default rule" for all texts, but the specific matter at hand.

He points to the "way it was understood by society at the time." What does that really mean? Did no one at the time think "equal protection" had some application to women? Bradwell v. Illinois [with Justice Ginsburg once "re-argued") suggests the dispute over the question, and the majority opinion [and the Chief Justice dissented] didn't hold that women could be deprived of rights simply on sex across the board. For instance, denial of a privilege or immunity of national citizenship, whatever that means, solely on sex surely would be problematic sometimes. The sexist concurrence in Bradwell did not really dispute that any more than racist sentiments that deemed blacks unequal in various respects made race never an illegitimate classification.

You didn't have to think it meant coverture was unconstitutional to think a provision that (cf. the 15A) textually is open-ended applied to sexual classifications in some instances. Also, as some have noted, the 19A very well could have changed the equation some (see also, Adkins v. Children's Hospital).

Posted by: Joe | Sep 24, 2010 4:25:54 PM


Posted by: WPB | Sep 24, 2010 11:31:29 AM

Perhaps Justice Scalia also believes that with respect to determining race, the "one-drop" rule would apply, but only if that one-drop is black. The 14th Amendment doesn't include such a "one-drop" rule in its text. So perhaps the "one-drop" rule might apply if that one-drop is white in determining race. It seems clear how Scalia would have cast his vote if he had been on the Court when Dred Scott was decided - or when Brown v. Board of Education was decided.

Posted by: Shag from Brookline | Sep 24, 2010 9:09:24 AM

Can you explain a bit more on why you see Scalia's view as inconsistent with his prior statements? I'm not entirely sure I see the tension that you see.

You ask that "[i]f the equal protection guarantee was to be limited to race, why not say so? " If I understand your argument correctly, you seem to be presuming a default rule that a textualist confronted with ambiguous text that could be construed on its face as broad or narrow should be construed broadly absent an express textual limit. I don't recall Justice Scalia ever suggesting such a default rule, though, so I'm not sure why his statement in the recent speech is inconsistent with his prior views.

Posted by: Orin Kerr | Sep 24, 2010 2:11:43 AM

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