This is the third in a series of posts examining some of the statements made by Justice Scalia in a long interview with Jennifer Senior in New York magazine. Once in a while, Scalia has a nugget of truth amid the nonsense, like this one:
What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.
A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”
If there’s a reasonable basis for not letting women do something—like going into combat or whatnot …
Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.
The nugget of truth is his disdain for different levels of scrutiny. He’s right about that. My position is that every law passed by Congress and challenged for constitutionality should be viewed under the strict scrutiny standard. In every case when the government regulates our conduct, they should have to show that there is a compelling state interest at stake and that the legislation being challenged is the least restrictive means of achieving it. Sometimes that’s a very easy case to make. No one could seriously argue that there isn’t a compelling interest in preventing people from dumping toxic waste into a river, for example. That’s an easy case. Others are much more difficult, as they should be. But the whole idea of levels of scrutiny, the progeny of the infamous Carolene footnote, should be done away with.
Let’s talk about the state of our politics for a moment. I know you haven’t been to a State of the Union address for a while, and I wanted to know why.
When was the last time you went to one?
Oh, my goodness, I expect fifteen years. But I’m not the only one who didn’t go. John Paul Stevens never went, Bill Rehnquist never went during his later years. Because it is a childish spectacle. And we are trucked in just to give some dignity to the occasion. I mean, there are all these punch lines, and one side jumps up—Hooray! And they all cheer, and then another punch line, and the others stand up, Hooray! It is juvenile! And we have to sit there like bumps on a log. We can clap if somebody says, “The United States is the greatest country in the world.” Yay! But anything else, we have to look to the chief justice. Gee, is the chief gonna clap? It didn’t used to be that bad.
Hear, hear. And it isn’t just the Supreme Court justices. No one should watch it. It’s a stump speech full of empty platitudes and stupid applause lines and it is absolutely meaningless as anything other than political theater.