In controversial cases, is the role of jurist to inflame controversy, or quell it?
In Loving v. Virginia, the 1967 case which found race-based marriage bans unconstitutional, Chief Justice Earl Warren built a 9-0 consensus—just as he’d done years earlier in Brown vs. Board of Education. He knew that a country divided by race ought to be united, if possible, by a Supreme Court mindful of fundamental values—even if the Court was, as the constitution requires, overturning the will of the majority.
The four dissents in the landmark case on same-sex marriage, Obergefell v. Hodges, one by each of the conservative justices on today’s Supreme Court, take a very different view. With invective and hyperbole, they pour fuel on the fire of the controversy over same-sex marriage. Rather than merely state their views and disagreements, they use heated language to accuse the five-person majority of imperialism, a “putsch,” and worse.
Thus, the unprecedented calls of elected officials for open revolt against the Supreme Court—a shocking display of treason—are now accompanied by calls from within the Court itself that Obergefell is illegitimate, and the Supreme Court itself no longer worthy of full respect.
Ironically, in alleging a new low for the Court, these four justices have brought one into being. Justice Scalia has, as usual, grabbed the spotlight with juvenile taunting usually reserved for the playground. But in fact, all four opinions are shocking.
Chief Justice Roberts (joined by Scalia and Thomas) makes a solid, and unsurprising, substantive case. There is, after all, no explicit right to marriage (for gays or anyone else) in the Constitution; it is, rather, a fundamental right inferred into the Fourteenth Amendment’s guarantees of due process and equal protection. Thus, one might expect a judicial conservative like Roberts to be suspicious of expanding it, particularly when doing so runs against the expressed will of a majority of state legislatures.
But the way he chose to cast his argument ill befits his status as chief justice. “The majority’s decision is an act of will, not legal judgment,” he writes. That is absurd: The court’s decision runs 30 pages, full of all the legal judgments, precedents, and statements of principle one would expect.
But that’s just the beginning. Across four pages, Chief Justice Roberts analogizes Obergefell to the Lochner v. New York decision, one of the most notoriously wrongheaded in Supreme Court history. Lochner means nothing to most people, but to anyone who’s finished the first year of law school, it’s a swear word.
He’s still not done. The Chief Justice of the United States then states (quoting a concurring opinion by Justice Kennedy) that “the legitimacy of this Court ultimately rests ‘upon the respect accorded to its judgments.’ That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change.”
In other words, the majority is arrogant, unrestrained, and thus not to be respected. It has an “extravagant conception of judicial supremacy.” “Those who founded our country would not recognize the majority’s conception of the judicial role.” And “The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it.”
Why not just tell the Religious Right to buy pitchforks and blowtorches? Chief Justice Roberts’s ironic opinion is immoderate in alleging immoderacy, extreme in alleging extremism.
Justice Scalia came next. And he begins thus: “I join THE CHIEF JUSTICE’s opinion in full. I write separately to call attention to this Court’s threat to American democracy.”
It seems inevitable that rhetoric like this will stir the next Confederate flag-waving zealot to an act of, if not domestic terrorism, at least outrageous revolt. How could it be otherwise? And yet this, too, was only the first line.
The next line is, at best, disingenuous: “The substance of today’s decree is not of immense personal importance to me.” As if. This from the man who, 12 years ago, wrote in his Lawrence v. Texas dissent that the Court “has largely signed on to the so-called homosexual agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Is that what the LGBT equality movement is about? Throughout Justice Scalia’s hysterical writing in LGBT-related cases, he has doggedly maintained that their subjects are merely “homosexual conduct” and “homosexual sodomy.” That there are, in fact, gay and lesbian people is not part of Justice Scalia’s worldview, as he has shown time and time again. There is only homosexual conduct.
And yet he says, like a “no homo” jock in a locker room, “Hey, I don’t care if you’re gay.”
Once again, just getting started. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.” That is outrageous rhetoric and an outrageous sentiment. The decision is not a “decree.” The Court is not a “Ruler”—it is an Article III interpreter of the Constitution, at its most important when it protects minorities against the will of the majority. Even demeaning Supreme Court justices as “lawyers” is a sign of disrespect.
Other statements are similar. “This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.” “What really astounds is the hubris reflected in today’s judicial Putsch.” And, “With each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”
Others have already quoted Justice Scalia’s rhetoric—“jiggery-pokery” and the rest—at length, so I won’t spend much time with it here. Because in fact, his jurisprudence is far more shocking. Watch this:
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification. We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification.
I have quoted this passage at length so there is no misunderstanding. What Justice Scalia is saying here is that if it was “universal and uncontroversial” in 1868, it’s obviously okay now. That principle, of course, would allow states to ban interracial marriages, including that of Justice Thomas. It would allow states to bring back the doctrine that a woman surrenders all her rights to her husband upon marriage. It is shocking.
To be sure, it is also of a piece with Justice Scalia’s “originalism” and is not, as such, novel. But its strict application here places Justice Scalia in a bizarre twilight zone of 19th-century values.
Likewise, Justice Thomas’s description of “the dangerous fiction of treating the Due Process Clause as a font of substantive rights.” That “fiction” has protected rights to contraception, to abortion, and to all kinds of intimate family matters. Justice Thomas’s reactionary jurisprudence would erase half a century of gains in the area of civil rights.
And likewise Justice Alito’s talking-point dictum that the opinion will be “used to vilify Americans who are unwilling to assent to the new orthodoxy.” This, of course, is a commonplace on the Religious Right—but its appearance in a Supreme Court opinion is nonetheless shocking.
But it is Justice Alito’s parting jab which resonates the most. Obergefell, he writes, evidences “the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.” This from someone who joined an opinion overturning 50 years of due process jurisprudence, and another arguing a return to 1868’s family values.
“All Americans,” he concludes, “should worry about what the majority’s claim of power portends.” Claim of power—as if the Constitution does not empower the Court to do exactly what it has done: use reasoning and interpretation to defend constitutional rights against laws that would abridge them.
These are, as the saying goes, fighting words, and more importantly, they are words that will inspire others to fight. They are what some call “stochastic terrorism,” the broadcasting of a message so incendiary as to inspire some “lone wolf” to violence—if not actual violence, then precisely the kinds of anti-democratic, anti-American defiance we have already seen among some politicians.
Were the targets of such acts only gays and lesbians, it would be bad enough. But these four dissents have encouraged disrespect of the Supreme Court itself. Agree or disagree with the Court’s method of interpreting the Constitution, they are acts of vandalism against one of the foundations of our democracy.