In his dissenting opinion, Justice Antonin Scalia sharply criticized the Court for shutting down “an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.” Scalia noted that the Court ignored the findings of the lower courts, the facts of the case, the Court’s precedent, and the Nation’s history. He wrote, “[t]o achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this Court, and ignores the history of our people. As to facts: It explicitly rejects the finding that there exist ‘gender-based developmental differences’ supporting Virginia’s restriction of the ‘adversative’ method to only a men’s institution, and the finding that the all-male composition of the Virginia Military Institute (VMI) is essential to that institution’s character. As to precedent: It drastically revises our established standards for reviewing sex-based classifications. And as to history: It counts for nothing the long tradition, enduring down to the present, of men’s military colleges supported by both States and the Federal Government.”

Scalia derided the Court for its narrow view of the Founders, writing that much of its opinion “is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education.” He acknowledged their outdated views, stating, “[c]losed-minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable.” However, Scalia asserted that “[t]he virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”

Scalia responded that “to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law.” He added that “[t]oday [the Court] enshrines the notion that no substantial educational value is to be served by an all-men’s military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others.”

Scalia ultimately concluded, “[s]ince it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.”