If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.This is just plain mockery of Justice Kennedy's opinion, with no particular "disciplined legal reasoning" of its own to offer. (One might claim that there is legal reasoning elsewhere in the dissent, but really, no, it's just one long rant about "judicial putsch" that could have been equally aimed at Lawrence or Griswold or Loving or even Brown.) If ever there were a time to hide one's head in a bag, I would think it would be after writing something so derisive and insulting about a colleague I'd be facing the next day (and working closely with for the rest of my life). Often it is only the cleverness of the prose that distinguishes Scalia's writing from the incivil name calling and insults found on the typical Internet comments page (or more recently, the Republican debates). One might consider him the Supreme Court's original troll. A few years ago, when he was speaking at Princeton, a gay student pointed out the language in some of Scalia's dissents that was especially offensive (such as comparing homosexuality to bestiality or pedophilia) and asked him, even if he still stood by his argument, if he had any regrets for his offensive choice of words. No, he did not. It is ironic that he worried he was witnessing the deterioration of our culture with the advance of gay rights (despite his best efforts to fight it at every opportunity), and yet by his own example he lead the coarsening of constitutional legal discourse and contributed to the erosion of respect for the institution he served. That being said, I will miss reading his dissents. There is the guilty pleasure of the zingers, of course. But the best part of reading a Scalia dissent is knowing that it was a dissent, and that despite his grandiloquent tantrums, liberty and justice prevailed.
Friday, March 04, 2016
I can say this about Scalia: the man knew how to wield a pen. His dissents were always colorful and entertaining, a guilty pleasure to read. How can one not appreciate someone who can drop words like "argle-bargle" and "jiggery-pokery" when brandishing his prose? It's unfortunate that this skill wasn't put in the service of better ends. In the annals of the Court, Scalia will be remembered for bringing the notions of "textualism" and "originalism" into currency. These are the ideas that correct judicial interpretation of the Constitution can be readily found by reading the plain words (textualism) and understanding the Founders' original meaning (originalism). They are meant to counter the notion that the Constitution is a "living document" that must be interpreted by the Court according to its essential principles in light of current understanding. Students of religion will recognize these theories as they apply to Biblical hermeneutics, and students of history will recognize how well the idea that one can gain universal agreement on the clear interpretation of the "plain words" (sola scriptura) works out. Taken at face value, Scalia's principles would have to rule that the Air Force is unconstitutional, as the plain text of the Constitution enumerates only an Army and a Navy, and the idea of military air power would not have been conceived of by the Founders. Though challenged on it, Scalia never did really explain how an originalist could endorse a decision like Brown v. Board of Education (the 1954 decision that ended school segregation), since the ratifiers of the 14th Amendment certainly didn't foresee or intend that implication themselves. His dodge is that he would have correctly decided Plessy v. Ferguson in the first place (that's the notorious 1896 case that ruled "separate but equal" schools constitutional). That's cheap hindsight. It's far more likely that an 1896 Scalia would have been as benighted by the prejudices of the day, finding segregated schools a reasonable social norm, as the present-day Scalia who heartily endorsed Bowers v. Hardwick (the infamous 1986 case upholding the constitutionality of sodomy laws). As called out in a New York Times opinion piece by Circuit Court Judge Richard Posner and law professor Eric Segall, Scalia is really a theocratic majoritarian at heart, content to find no power in the Constitution to protect minorities against the tyranny of the majority, at least when it comports with his own conservative morality. When his principles would seem to lead to a conclusion that went counter to his personal morality, his intellect and prose would be brought to bear to torture his principles into confessing the desired conclusion. See, for example, his opinion for the Court in Raich v. Gonzales, finding that Congress's Commerce power could regulate people growing pot in their own backyard for their own personal use, and Justice Thomas's dissent in a rare split from Scalia. Likewise, one might well wonder how a textualist or an originalist finds "corporate personhood" (the idea that corporations are persons, and thus have the same rights as persons) in the plain text or original meaning of the Constitution. While he refused to see the straight lines from the Founders' principles through de Toqueville and John Stuart Mill to landmark decisions like Griswold (finding a fundamental right to marital privacy that made it unconstitutional to outlaw contraception) and Lawrence (overturning Bowers and sodomy laws), he could see "penumbras" when he wanted to. Ultimately, he was as guilty of "interpretive jiggery-pokery" as anyone. His originalism may have provided better cover for his anti-gay animus, except that his apoplectic dissents on every landmark advance in gay rights over the last thirty years unabashedly laid bare his conservative moral prejudices. Despite the clear constitutional jurisprudence that "bare animus" is insufficient rationale for a discriminatory law (i.e., a majority may not outlaw a minority without a reason better than "ew that's weird"), Scalia, in his dissent in Romer v. Evans, rises to the defense of bare animus when it amounts to moral disapproval of homosexual conduct. Beyond his legacy of originalism, he also leaves a legacy of coarsening the level of discourse around contentious issues, unfortunately now embodied in the records of our highest court, and emulated by many of his Federalist Society acolytes. The admittedly entertaining creativity of his prose often belied bare pugnaciousness, light on real argument. He was famous for his tart interrogations during oral arguments, and the zingers in his dissents. Here is a typical example in his stinging dissent in Obergefell (last year's landmark gay marriage ruling):