Injustice on the Job: Supreme Court Not Interested, Says Justice Scalia

the supreme court Those seeking justice for what they perceive as workplace discrimination due to the fact that they're either female or gay often file lawsuits -- whether as an individual or in the form of a class action. The most famous of them, "Ledbetter v Goodyear Tire," reached the U.S. Supreme Court. Now, the court is reviewing "Dukes v Wal-Mart." If Justice Antonin Scalia has things his way, the court will not be taking too many more of these employment discrimination cases.

Never reluctant to voice his view of the law, Scalia spelled out in an interview with California Lawyer that the U.S. Constitution does not protect women and gays from discrimination. It's no surprise that his comments are getting plenty of media attention, ranging from the Washington Post to Gawker.

Scalia, a constitutional originalist, interprets the document narrowly. Unlike constitutional evolutionists, he does not "read in" what the authors might have been thinking then or what they might be think today. Therefore, he gives a strict or limited interpretation to the 14th Amendment equal protection clause:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

justice antonin scalia In Scalia's way of thinking, the authors of that time [1868] had no way of envisioning the rights of women and gays. To ensure that those rights are protected, Scalia notes in the California Lawyer:

"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."

Therefore, in the future, you might consider lobbying your state and federal representatives as well as your senators to address discrimination you face in the workplace.

So while things currently look a little grim for plaintiffs (and their attorneys) who wish to have their discrimination case heard by the highest court in the land, if Scalia's position incurs enough public outrage, you just might find yourself traveling to our nation's capitol to bear witness and have your grievances presented to The Nine.

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The author has mischaracterized Scalia’s originalist philosophy and seems to be completely ignorant concerning the law.

Scalia’s originalist philosophy does not require a “strict” interpretation of the provisions involved, but a “reasonable” interpretation. The only thing strict is the time period from which the reasonable interpretation is discerned: it is from the time it was enacted. So, for example, if the 13th Amendment prohibits slavery, slavery means what it was understood as meaning when the amendment was adopted. If, later, modern society twists and perverts the term to mean the exact opposite of what it once did—so that the Amendment would actually require slavery—the originalist interpretation remains unchanged and the Constitution is upheld. An evolutionist, however, could claim that the new meaning (the exact opposite of the original meaning, in this example) should be used.

The author seems to think that the 14th Amendment’s Equal Protection Clause is necessary to bar private companies from discriminating based on sex or sexual orientation. But the cases she cites do not involve the Equal Protection Clause but Title VII. The Dukes case involves a question about Due Process in class action suits. Since Walmart isn’t a state, the Equal Protection Clause does not apply to the case. As Scalia pointed out in the interview, legislatures can still create a law to prevent the discrimination; here, the law is already in existence.

When it comes to employment law cases, most attorneys do not want, or expect, the Supreme Court to be involved at all. They want the law to be clearly defined so that they can resolve the case as soon as possible (as discovery reveals the evidence) with as little cost as possible.

January 16 2011 at 1:18 PM Report abuse rate up rate down Reply

"if Scalia's position incurs enough public outrage, you just might find yourself traveling to our nation's capitol to bear witness and have your grievances presented to The Nine."

Why is this not wasted energy? Scalia says, in language so clear a dog or cat can understand it, that if you have a grievance, it is more suitable for address by the legislature or local government. The Supreme Court should concern itself largely with matters of legal theory and its ongoing development, by trying only those cases which suggest new matters of law upon which little or unclear precedent rests.

It is not a court of public opinion, and thus should not be beholden to public opinion; in spite of the prejudices of the present journalist. Nor is it a civil court.

January 15 2011 at 7:39 AM Report abuse rate up rate down Reply

Following Scalia's logic, the Constitution does not provide for the protection from discrimination against white or heterosexual men either.

January 06 2011 at 12:05 AM Report abuse rate up rate down Reply
1 reply to MattGordonMD's comment

According to current political liberals, the Constitution is a living vibrant document subject to whatever today's society needs from it to promote their views. In other words, whatever is needed - the end justifies the means.

I believe it is to be interpreted in a generally strict manner. People and their motives are the same today as they have ever been in our recorded history. Everyone is out for themselves and their slice of the pie and to heck with the consequences.

To hear that the Constitution is a ever-changing fluid document by the Liberals views is to create chaos. We have a Constitution that neatly fits whatever their version of it should be - according to them. This leads to a future that it can be changed again and again, whatever faction that is in power wants it to be.

So - if the liberals don't like what a strict reading of it is then CHANGE IT by amending or abolishing or an entirely new section to it. Until such action it is entirely to be narrowly followed - otherwise it's going to be chaotic and reflect only the current mood of that particular faction/ time. Maybe it is time for a Constitutional renewal after 223 years & we should have a Constitutional Convention to reset it for another 200 years. What an occasion that would be !

January 06 2011 at 7:28 AM Report abuse rate up rate down Reply

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