Having said that, there is one undeniable fact in all of this, and that is that Chief Justice Scalia is an idiot. That is not to say he's wrong on this case overall (as I say, I have no idea whether he is or not), but this argument is so infuriating in its total absence of logic or thought it actually took me a little while to process its foolishness:
[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion.Lemieux is appropriately gob-smacked by this line of "argument", but I don't think he's followed it through to conclusion. If we tweak the Scalia quote just a little, we get "left to their own devices most citizens in any country—and surely most citizens in a country that forbids stealing cars—would select legal currency-based methods for acquiring automobiles".
You see the problem? It's not that the statement becomes false - I'm sure that most US citizens who own cars did indeed pay for them - it's that it becomes patently absurd to utter the phrase whilst considering whether a specific individual stole a car or not. I'm not for one second suggesting we abandon the idea of "innocent until proven guilty" - though of course whether or not that applies to such cases, I am unsure - but to use the fact that most people follow the law as an argument against the prosecution is self-evidently imbecilic. You would have thought that point would be obvious to a man whose entire profession is based around dealing with the people who don't follow the rules like the rest of us.
Most people are not murderers. Most people are not rapists. Most companies, for all I know, do not employ discriminatory hiring practices. Unless we're going to start applying Scalia's argument to any crime we believe less than half the citizenry are guilty of, however, (and let's not forget, there's only one person in this post who believes that corporations should be treated like citizens, and it sure as hell isn't me), Scalia's position is laughable. Unfortunately, it's also entirely in keeping with his inability to argue with any coherence whenever a large company comes running to Daddy.