Following the passing of Justice Antonin Scalia, the country mourned the loss of one of its greatest legal thinkers. Not surprisingly, Jessica Valenti of the leftist British newspaper The Guardian was quick to figuratively spit on his grave.
Valenti dispensed with any reservations she had about attacking Scalia so soon after his death by saying he had a sharp tongue and was against women (emphases mine):
Given Scalia’s penchant for disagreement and unapologetically saying what you think...it seems unlikely that he’d take issue with the American people doing the same in the wake of his passing. And the truth is that throughout Scalia’s long tenure on the supreme court, he crafted a legacy that was decidedly regressive and anti-woman.
Considering that Scalia remained happily married to his wife for fifty-six years and had nine children with her, one wonders how Valenti can call him “anti-woman.” In any case, she began flogging Scalia in earnest thusly:
Scalia was a proponent of originalism, believing that the constitution’s meaning is fixed, and should be interpreted in the way the framers originally intended. He was decidedly anti-progressive: Scalia wanted to overturn Roe v Wade, voted against protecting equal pay, wanted states to be able to outlaw gay sex, and sometimes said things outside of the courtroom about these issues that raised eyebrows.
Valenti never paused to consider that Scalia was merely doing his job of adhering to the text of the Constitution and discerning the intent of those who wrote it, thus absolving him of blame for the decisions, even if they were blameworthy. In any case, these complaints are par for the course.
However, Valenti went over the top by citing the ACLU to claim that “Scalia said he believed that women were not protected by the constitution.” How does she justify this claim? By pointing out that Scalia said the Constitution “doesn’t [prohibit discrimination on the basis of sex].”
This would be an eyebrow-raising moment, were it not for the fact that Valenti effectively tore down the red flag by showcasing the rest of Scalia’s quote. “If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws.”
In light of this quote, to suggest that Scalia said that “women were not protected by the constitution” is highly misleading at the very least and a case of reckless rhetorical journalism at the most.
How else does Valenti prove that Scalia was “regressive and anti-woman?” He suggested that there are “some intelligent reasons to treat women differently,” said abortion protestors wanted to “comfort women,” and “expressed discomfort with women who swear.”
Switching gears, Valenti claimed that Scalia was “known for his breathtaking homophobia.”
In Lawrence v Texas he...argu[ed] that while outlawing gay sex does impose “constraints on liberty”, so do laws that outlaw prostitution or “recreational use of heroin”. He also compared gay sex to incest and bestiality and argued that states had the right to make gay sex illegal because “they view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
In other words Scalia was a homophobe for correctly observing that the logic employed by the court to strike down the anti-sodomy laws could be used to justify incest. The fact that Scalia was proven right by the emergence of the pro-incest lobby, which is using the same legal, moral, and cultural arguments the pro-gay lobby did before them, does nothing to change her assessment of Scalia.
As she concluded her piece, Valenti finds comfort in the fact that “For better or worse – a lot would argue for better – none will leave the kind of legacy Scalia did.”