All week, since California Lawyer reported (and Huffington Post widely circulated) Justice Scalia’s remarks in an interview that the Constitution’s Fourteenth Amendment doesn’t protect women from discrimination, I’ve been getting calls from reporters and other Court watchers asking: Is this new? Are you shocked? The answers are no and no. This is vintage — archaic — Scalia. And it’s important to note that this is one area of the law in which Scalia has been unpersuasive and alone.
For decades and with votes by other conservative justices, the Supreme Court has said the Fourteenth Amendment’s guarantee of equal protection covers women. This is not a close call.
Yet Scalia has long rejected women’s equal rights, and in the most provocative terms. When the Court in 1996 struck down the all-male policy of the state-run Virginia Military Institute, Scalia was alone in dissenting and arguing that it should be able to exclude women. He praised “VMI’s attachment to such old-fashioned concepts as manly honor” and said “the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.”
With his extreme views and flaming tongue, Scalia will always make news. On women’s rights, however, Scalia is old news.