A Lesson for Scalia: Courts Don’t ‘Invent’ Minorities, They Recognize Them

It may come as no surprise to you that Justice Scalia and I don’t see eye to eye on very much. He claims to be a Constitutional originalist; I think that’s a naive way to make and interpret law. We just have different philosophies, and reasonable people can disagree. Sometimes, though, Scalia says something that is so wrong and so dumb that I can’t believe I’m hearing it in 2013. One of those times just happened to be this week.

At an event sponsored by the Federalist Society, Justice Scalia said… Well, I’ll just let him say it. According to Raw Story:

“It’s not up to the courts to invent new minorities that get special protections,” Scalia told an audience at an event held by the Federalist Society, arguing that the high court is taking up matters best left before voters or Congress, a reference to its June 2013 decisions striking down both the Defense of Marriage act and California’s Proposition 8, which barred same-sex marriages. Scalia dissented in both decisions.

Hoo boy. OK, I think I know what he’s saying. He’s an originalist. Just look at what’s in the Constitution and how the framers understood what they were writing and that’s it. The framers of the Civil War amendments to the US Constitution had race in mind when they wrote them, so I guess race is all that should be included.

This isn’t exactly news. It’s not the first time Scalia has complained about who is covered by the 14th Amendment equal protection clause. In 2011 he famously made the claim that women’s rights aren’t actually constitutionally protected. (I think his good friend and colleague Justice Ruth Bader Ginsburg would have a thing or two to say about that).

Here’s the thing, though. The Supreme Court doesn’t create new minorities. These minorities have been around the whole time, but those privileged enough to be in the majority couldn’t or wouldn’t see them. It’s not necessarily the fault of the privileged majority; sometimes you just don’t know what to look for.

For example, it’s taken me years and years to even start to understand race in America. It takes a lot of work to see past your own nose and even more will power to not just throw up your arms in exhaustion and ignore racial tensions because you can. I could live in ignorant bliss and choose to not try to educate myself. It would certainly make my life a lot easier, but that’s not what responsible citizens do.

Scalia seemed to be speaking in the context of the recent same-sex marriage decisions, both of which he was in the minority. In these cases, the Supreme Court wasn’t creating a new minority out of whole cloth. Gay, lesbian and bisexual people have been around forever and have been discriminated against in this country for decades (and still are). For a long time they were invisible; now they are not. The Supreme Court did not create a new minority; it responded to the social revelation that LGBT people are being treated unfairly under the law. The court recognizes new minorities, but it doesn’t create them.

Maybe if Scalia had his way, every minority group that gets Constitutional protection would have their own section of the Constitution. However, that’s not how our system works. At least it’s not the most efficient way it works. We operate on a variety of different principles and rules, and we apply those rules to different situations. That’s what makes our common law system kind of cool. We don’t need to make a special rule for every new situation. We make analogies. We have judicial opinions that can go on for hundreds of pages because the logic of decision is often more important as the decision itself. To say that the SCOTUS shouldn’t recognize new minorities only leads to a stagnant justice system, which isn’t very just at all.

Photo Credit: Stephen Masker


Kevin Brown
Kevin Brown4 years ago

As a legal scholar I must say that Scalia is an absolute idiot. I have read many of his cases and they are horrid and guaranteed to give the reader a headache as he twists tortured logic to fit his disgusting right wing extremist agenda. The man is a disgrace pure and simple.

Lori Ann Hone
Lori Hone4 years ago

He's a complete ass

Lynn C.
Lynn C4 years ago


Vicky P.
Vicky P4 years ago

wow..what a complete moron and a horrible human being

Stanley R.
Stanley R4 years ago

Scalia is a demon who deserves early retirement.

Bartley Deason
Bartley Deason4 years ago

James H. wrote:
"So I would say that your statement quoted above is a bad example. Also, what does it have to do with the Constitution?

Maybe a bad example but I am sure you get the point I am making that society changes along with it's mores. Unfortunately, a SCOTUS judge who interprets the constitution as an originalist doesn't recognize those changes and hence, interprets according to the 18th century world, which denies the chance for the constitution to evolve along with the rest of society. That is what my examples have to do with Scalia and the Constitution.

pam w.
pam w4 years ago


I've been asking it for awhile. Here in California, Caucasians are teetering on the edge of ''minority'' and I'm wondering when the tide will turn against Affirmative Action?

And this "Justice" is a joke!

Angelus Silesius
Angelus S4 years ago

So when are they going to recognize that white people are now the minority and give them protections?

Chad Anderson
Chad Anderson4 years ago

If we are going to be originalists, then Scalia is an Italian, regarded as "Black" for much of American history, as well as a Catholic (frequently known back then as a "papist"), widely regarded a threat to the state because they were thought to mindlessly follow the orders of the pope. Shouldn't Scalia be aggressively trying to curtail his own rights?

ElegantGypsy Rose

i think his tricorne hat is in the mail. and it is likely lined with tinfoil too.