The conservative’s views on discrimination, sexuality, race and abortion made him a liberal bugbear. But he did have some capacity for understanding

It would be an understatement to note that Justice Antonin Scalia, who passed away on Saturday, was a controversial figure. Known for his acerbic dissents and what President Obama called a “larger than life presence on the bench”, the supreme court justice’s death immediately provoked discussion on how soon is too soon to note the way a public person’s career negatively affected so many.



Antonin Scalia: man of his word who shaped America in life and in death Read more

Given Scalia’s penchant for disagreement and unapologetically saying what you think, however, 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.

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.

Jessica Mason Pieklo, vice-president of law and the courts at RH Reality Check, a group concerned with reproductive and sexual health issues, says: “He argued abortion rights, same sex marriage, and policies that address systemic racial segregation all should be left to the voters while insisting corporations have constitutional religious rights to deny employees equal benefits on the basis of gender.”

In a 2011 interview with California Lawyer, Scalia said he believed that women were not protected by the constitution, bucking decades of precedent.

“Certainly the constitution does not require discrimination on the basis of sex,” Scalia said.

“The only issue is whether it prohibits it. It doesn’t … If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws.”

The American Civil Liberties Union called his comments “extreme and out of step with the mainstream”; the National Women’s Law Center said: “Rather than acknowledging that our understanding of the principles enshrined in the constitution grows and deepens over time, [Scalia] would freeze its meaning in the 19th century.”

Scalia walked back the controversial comments a bit in a 2013 New York Magazine interview, saying “of course” the 14th amendment prohibits discrimination by sex – but that the issue is what constitutes discrimination.

“There are some intelligent reasons to treat women differently,” he noted. (He also expressed discomfort with women who swear.)

On abortion, Scalia thought similarly, saying in a visit to the Oxford Union that “the constitution says nothing about [the right to abortion]”. In addition to wanting to overturn Roe, Scalia voted to uphold legislation that banned abortion in the second trimester without a health exception, and came down on the side of anti-abortion protesters trying to block women’s access to clinics. Scalia even characterized the protesters – who frequently scream at women, call them “murderers”, and even assault them – as wanting “to comfort women”.

And during oral arguments for the Hobby Lobby case on contraception coverage as part of the Affordable Care Act, Scalia seemingly agreed with Hobby Lobby’s incorrect characterization of some forms of birth control as abortion-inducing, calling them “abortifacients”.

It should be noted, though, that some in the anti-abortion community were torn on Scalia after a 2008 60 Minutes interview in which he told Lesley Stahl that he disagreed with those who thought “you treat a helpless human being that’s still in the womb the way you treat other human beings”.

“I think when the constitution says that persons are entitled to equal protection of the laws,” he said, “I think it clearly means walking-around persons.”

Afterwards, the American Life League called Scalia “the enemy” and his comments “downright ridiculous, as a matter of fact, it is heretical”.

The justice was also known for his breathtaking homophobia. In Romer v Evans he defended animosity towards gay people as similar to the disdain one would have towards murder or cruelty to animals and compared laws that limited LGBT people’s rights to those that adversely affect smokers or drug addicts.

In Lawrence v Texas he wrote something similar, arguing 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”.

Scalia’s views on race also drew wide criticism. During oral arguments for the affirmative action case Fisher v University of Texas last year, he made offensive comments concerning people of color, saying: “There are those who contend that it does not benefit African Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school … a slower-track school where they do well.”

It’s important to remember that behind that brilliant prose were a lot of radically dangerous beliefs Jessica Mason Pieklo, RH Reality Check

According to one reporter, the comment elicited “muted gasps in the courtroom”.

Pieklo said: “A lot has been said about how brilliant a writer Scalia was, but I think it’s important to remember that behind that brilliant prose were a lot of radically dangerous beliefs.”

Despite Scalia’s history of anti-woman beliefs and rulings, he remained close with Justice Ruth Bader Ginsburg, so much so that a comedic opera, Scalia/Ginsburg, was created in their honor.

Irin Carmon, author of Notorious RBG: The Life and Times of Ruth Bader Ginsburg, wrote of their friendship: “Whether or not it was how Scalia saw it, for Ginsburg their public friendship also made a statement about the court as an institution: that it was strengthened by respectful debate, that it could work no matter how polarized its members were.”

It’s unclear what Scalia’s death will mean for upcoming cases concerning women. Next month, for example, the court is set to hear arguments in Whole Woman’s Health v Hellerstedt, on the Texas law that effectively shut down most of the state’s abortion clinics.

Facebook Twitter Pinterest Scalia makes a rare appearance on Capitol Hill, to testify before a Senate judiciary committee hearing in 2011. Photograph: Jim Lo Scalzo/EPA

US supreme court: the key issues affected by death of Justice Scalia Read more

The law required that doctors performing abortions have admitting privileges to hospitals within 30 miles of their clinic and that any clinics providing abortions meeting the same building regulations as ambulatory surgical centers. The Center for Reproductive Rights has called the law “deceptive”, and noted that it has placed too many hurdles in front of women seeking abortions.

“In the process, HB2 punishes women for their decision to exercise their constitutional right to end a pregnancy,” they say.

With Scalia’s death, the ruling might result in a tie in Whole Woman’s Health, in which case the lower court ruling – which would let Texas’ law stand – would remain in effect.

No matter what happens in future cases, what is clear is that Scalia’s empty seat will irrevocably affect women’s and civil rights; and should Congress effectively stall President Obama’s supreme court pick, the next president could possibly appoint up to three justices. For better or worse – a lot would argue for better – none will leave the kind of legacy Scalia did.

As Slate’s Dahlia Lithwick wrote, Scalia “was the most three-dimensional justice with an often two-dimensional worldview”.

“History will likely remember him as someone who was gloriously, powerfully on the wrong side of so many important questions. But history will surely remember him.”