On the Passing of Justice Scalia

It is a great loss. Everybody has heard about Scalia's dissent in Obergefell vs. Hodges, in which the court discovered that marriage has nothing to do with sex. I had read a few quotes from the dissent, but not the whole thing until today. It's very much worth reading. Here is one powerful excerpt.

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

And as someone who cares about writing I applauded this:

The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.[22] Of course the opinion’s showy profundities are often profoundly incoherent.

I have to note that I saw this happening twenty-plus years ago and described it in an essay called "Nothing at the Center," which appeared in Caelum et Terra.

It is in many circles somewhere between bad manners and villainy to admit to having fixed beliefs on most moral and philosophical questions. Yet it is clear that the human mind requires such points of fixity, and so we find the most skeptical intellectuals placing the most naive trust in the judgment of the Supreme Court. It is not just that they acknowledge the fact that the Court has the last word; there is almost a sense that they believe that the Court’s decisions constitute what is right and true, at least for the moment.

To place such trust in these nine popes without a God would obviously be a mistake at any time, but now it is ridiculous. We find ourselves in the position of expecting to have the most serious moral questions answered by a group of lawyers selected by politicians, and we are getting the sort of answers that might be expected.

There is some irony in the fact that Scalia, a Catholic, did not argue for the normal and reasonable understanding of marriage, but only for the constitutional question of who is entitled to decide. I argued in my essay that the absence of any recognition of an agreed-upon moral framework may be the fatal weakness of the American system. As far as his work as a judge was concerned, Scalia accepted that. He makes no attempt to appeal to any higher law. It is in fact the justices who declared same-sex marriage a fundamental right who ignored the Constitution in favor of what they clearly believe, though they didn't use the term, to be a higher law, an unwritten law which can be invoked at the will of any five Supreme Court judges to nullify whatever laws happen to be written down, including the Constitution itself. Unwittingly they testify to the impossibility of escaping the necessity of fundamental moral judgments.

Here is Kevin Williamson at National Review making an argument similar to mine, even using similar language, but rather more forcefully:

The alternative [to Scalia's approach] is to make the Supreme Court a nine-person mob in a mob-rule society. We already are dangerously close to that point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer will find a way to produce the outcome that the Left desires in any important case. Kagan lied to the Senate about her thinking on the question of gay marriage in order to have the opportunity to enact that thinking from the highest court. Never mind that the Constitution does not actually say what they wish it said about gay marriage, abortion, gun ownership, or the fact that First Amendment protections go well beyond the editorial board of the New York Times: If the Left demands a constitutional right to late-term abortion manufactured out of whole cloth, or that the words “the right of the people” be magically transformed into “the National Guard” in the case of the Second Amendment, these so-called justices will deliver.

Actually I'd quibble a bit with that. It isn't mob rule that progressives want, it's the establishment of their own system of absolutes.

Well, I keep saying that American democracy is in decay, and that self-rule by the governed is becoming a hollow concept. The replacement of Scalia by someone of President Obama's choosing will certainly further the decay, though there is some hope that Republicans will make good on their currently stated intention not to confirm an Obama appointee. The efficacy of that, if it happens, will of course hold for only a year if the Republicans lose the presidential election, and quite possibly if they win.

 And the opposition should not let the Democrats intimidate them into believing there is something wrong with refusing to confirm Obama's choice.

 

Comments

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The only thing I agree with here is that the judges should not be partisan, but should instead uphold and interpret the law. You accuse the left judges of partisanship, but the right judges are also. Scalia and Ruth Bader Ginsburg were apparently very good friends, which just goes to show what I am always saying, that the people in Washington who disagree with each other get along fine. The masses on the other hand, inflamed by rhetoric from online media (etc.) only throw nastiness back and forth.

" the judges should not be partisan, but should instead uphold and interpret the law."

But that's the whole point--that was what Scalia believed and did. The liberal judges don't really make much pretense of doing that any more when something like same-sex marriage comes along.

You've had some really good and long pieces here lately. I'm glad to see that, even if they are about politics. ;-)

AMDG

The same could be said with regard to "a well regulated militia", Mac. How does that translate to individuals can purchase and own any sorts of firearms?

I think it all depends on which topics happen to be most offensive to you.

Stu,

He's not arguing for any particular topic (although he has an opinion on the topic, obviously), he is using this particular decision to illustrate a point which is that judges should be non-partisan, and Scalia was, and the liberal judges were not.

AMDG

I understand, but I also believe the conservative justices vote along partisan lines without regard to the law. Scalia was in that camp. Roberts is the only one who has impressed me lately (out of the whole group) as not doing so. I guess that makes he and Kennedy the two who in my opinion look to the law for their answers, rather than personal belief.

Stu, I grant there is a legitimate argument there. But you have to read the whole sentence: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

As Kevin Williamson notes in that article I linked to, it says "the people", not "the National Guard." It's just not clear, overall--what did the framers really intend? But the fact that for most of the life of the Constitution there was little or no controversy about a right to private ownership of firearms is an important part of the argument. Anyway, the question is not at all in the same class as something like abortion rights, as there is an applicable text involved here, not some new right which very obviously never crossed the minds of the framers.

I think your last sentence inadvertently exhibits the problem: "I think it all depends on which topics happen to be most offensive to you." "Offensive" really shouldn't have anything to do with it.

Do you have an example of Scalia voting without regard to the law?

Janet, re long pieces: I'm really struggling about what to do with the blog these days. I'm working on other and/or bigger writing projects, including pieces that might once have been SNJs that I plan to submit to magazines. So I'm not sure where that leaves the blog, although I certainly don't want to give it up.

It just seems unbelievable that in a country where many people used firearms to provide sustenance for themselves there would be any objections to citizens having guns. I'm willing to bet that every single member of congress had at least one gun.

From everything I've read about that period time--and it is not a negligible amount--the concern here was to protect the citizens from the government. Sort of a moot point at the moment since there is no way firearms can protect us from our government.

AMDG

By offensive I only meant to folks like you and I, not the justices.

No, sorry, I am only a casual observer, I cannot quote line and verse like our old friend Art Deco. To be honest it is all so unpleasant for me to consider that I would rather not remember. Which sounds like a good opening line of a country music song!

All I can say is that if a justice always votes on the left, or always votes on the right then TO ME that means that is how they vote which would seemingly have less to do with the law than their own ideology.

That is why I am more impressed by Roberts and Kennedy, and less so with those that always vote a certain way. Regardless of how nicely they can write their defense of position.

BTW - I love when Janet lets me know what you meant. :)

:-) Well, often I need some help.

"...if a justice always votes on the left, or always votes on the right..."

I agree that that's bad. But a big part of the problem now is that attempting to stick with what the law says now puts one "on the right." If I'm not mistaken Scalia has voted against laws prohibiting flag burning which in left-right terms is more of a lefty view.

I didn't tell you what he meant. I told you what he said. You were answering something he didn't say.

AMDG

Okay Janet ... how about "when Janet clarifies"? I am in constant need of clarification in my life, so this is a good thing!

There you go. I was just clarifying again.

AMDG

Illuminating--light on dark water, so to speak.

AMDG

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