After Justice Scalia’s Death, What Happens for Women?

No justice in recent decades has had a worse record on women’s issues than Antonin Scalia, who died this weekend in Texas at age 79 of apparent natural causes. Replacing him offers an opportunity to move the law in a progressive direction that must not be squandered.

Most obviously, Justice Scalia repeatedly and emphatically urged the overruling of Roe v. Wade and voted to uphold every restriction on abortion rights that came before him. He likewise was a foe of reproductive rights for women in other contexts as well. In Burwell v. Hobby Lobby Stores in 2014, he was part of a five-justice conservative majority holding that employers who objected on religious grounds did not have to provide contraceptive coverage to women.

In the area of discrimination, Justice Scalia was the sole dissenter in a 7-1 decision in United States v. Virginia that declared unconstitutional a law that prohibited women from attending the Virginia Military Academy. In this opinion, and in his off-the-bench speeches, he made clear that he did not believe that the Constitution prevented sex discrimination. He was a consistent vote against women in employment discrimination cases, such as in the pay equity case Ledbetter v. Goodyear Tire and Rubber Co. in 2007.

The importance of this vacancy on the Supreme Court cannot be overstated. Replacing Justice Scalia with a progressive, feminist justice would create a five-person majority (with Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer) to uphold reproductive freedom—especially in the upcoming Whole Woman’s Health v. Hellerstedt case—and strike down the hundreds of laws adopted by states across the country to restrict abortion and access to contraceptives. Such a justice could be the fifth vote to overrule Citizens United v. Federal Election Commission and allow the government to limit the undue influence of corporations and the wealthy.

It is crucial that President Obama select someone with a progressive vision on these and other issues. It is imperative that he resist the temptation to choose someone who would be acceptable to Senate Republicans if it means a justice who would not protect women’s rights and the rights of all of us. Justice Scalia served on the court almost 30 years and his replacement likewise could be there for decades. This vacancy is an opportunity that must not be wasted.

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Photo courtesy of Flickr user Cknight70 licensed under Creative Commons 2.0

Erwin Chemerinsky is dean and distinguished professor of law and Raymond Pryke professor of First Amendment law at the University of California, Irvine School of Law.


Erwin Chemerinsky is the founding Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law, at University of California, Irvine School of Law, with a joint appointment in Political Science. He was previously the Alston and Bird Professor of Law and Political Science at Duke University and a professor at the University of Southern California Law School, DePaul College of Law and UCLA Law School. He is the author of ten books and more than 200 law review articles and writes a weekly column for the Orange County Register, monthly columns for the ABA Journal and the Daily Journal, and frequent op-eds in newspapers across the country. He frequently argues appellate cases, including in the United States Supreme Court. In January 2017, National Jurist magazine again named Dean Chemerinsky as the most influential person in legal education in the United States.