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Judging In A Vacuum, Or, Once More, Without Feeling: How Justice Scalia’S Jurisprudential Approach Repeats Errors Made In Plessy V. Ferguson, Chris Edelson

Chris Edelson

Justice Antonin Scalia recently declared that the 14th Amendment’s Equal Protection Clause simply does not apply to discrimination based on sex or sexual orientation. Though Justice Scalia’s statement is not exactly news, as he had previously suggested as much in dissenting opinions in Romer v. Evans and United States v. Virginia, it does provide an opportunity to consider how he arrived at these conclusions. Justice Scalia argues that he is simply applying the original meaning of the Equal Protection Clause, deferring to tradition and the will of the people until and unless democratic action provides new instructions. This article argues …