Scalia's dissent is worth a read. [...] Since there is no doubt whatever
that the People never decided to prohibit the limitation
of marriage to opposite-sex couples, the public debate
over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking
even a thin veneer of law. Buried beneath the mummeries
and straining-to-be-memorable passages of the opinion is a
candid and startling assertion: No matter what it was the
People ratified, the Fourteenth Amendment protects those
rights that the Judiciary, in its “reasoned judgment,”
thinks the Fourteenth Amendment ought to protect.
That is so because “[t]he generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did
not presume to know the extent of freedom in all of its
dimensions . . . . ” One would think that sentence would
continue: “. . . and therefore they provided for a means by
which the People could amend the Constitution,” or perhaps
“. . . and therefore they left the creation of additional
liberties, such as the freedom to marry someone of the
same sex, to the People, through the never-ending process
of legislation.” But no. What logically follows, in the
majority’s judge-empowering estimation, is: “and so they
entrusted to future generations a charter protecting the
right of all persons to enjoy liberty as we learn its meaning.”
The “we,” needless to say, is the nine of us. “History
and tradition guide and discipline [our] inquiry but do
not set its outer boundaries.” Thus, rather than focusing
on the People’s understanding of “liberty”—at the time of
ratification or even today—the majority focuses on four
“principles and traditions” that, in the majority’s view,
prohibit States from defining marriage as an institution
consisting of one man and one woman. 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. Judges are selected precisely for their skill as lawyers;
whether they reflect the policy views of a particular constituency
is not (or should not be) relevant. Not surprisingly
then, the Federal Judiciary is hardly a cross-section
of America. Take, for example, this Court, which consists
of only nine men and women, all of them successful lawyers
who studied at Harvard or Yale Law School. Four
of the nine are natives of New York City. Eight of them
grew up in east- and west-coast States. Only one hails
from the vast expanse in-between. Not a single Southwesterner
or even, to tell the truth, a genuine Westerner
(California does not count). Not a single evangelical
Christian (a group that comprises about one quarter of
Americans), or even a Protestant of any denomination.
The strikingly unrepresentative character of the body
voting on today’s social upheaval would be irrelevant if
they were functioning as judges, answering the legal
question whether the American people had ever ratified a
constitutional provision that was understood to proscribe
the traditional definition of marriage. But of course the
Justices in today’s majority are not voting on that basis;
they say they are not. And to allow the policy question of
same-sex marriage to be considered and resolved by a
select, patrician, highly unrepresentative panel of nine is
to violate a principle even more fundamental than no
taxation without representation: no social transformation
without representation.[...][I]t is not of
special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it
is that rules me. 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. The
opinion in these cases is the furthest extension in fact—
and the furthest extension one can even imagine—of the
Court’s claimed power to create “liberties” that the Constitution
and its Amendments neglect to mention. This
practice of constitutional revision by an unelected committee
of nine, always accompanied (as it is today) by extravagant
praise of liberty, robs the People of the most important
liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.
Scalia isn't arguing that same-sex marriage should not be passed. In fact he's arguing his personal opinion is irrelevant. He's merely stating that he does not think same sex marriage should have become legal in the matter it did, by the ruling of nine naturally biased persons. These people do not represent all 320 million Americans and their viewpoints. Accordingly, this ruling by 9 persons undermines the views of the other 320 million of us. I'm glad this ruling occurred, but I'm inclined to agree with Scalia. It would have been better if the states had passed their own laws to similar effect, after due public discourse. Is this cold hearted? Yes, but let's not have personal emotion and beliefs interfere with the basic processes and beliefs that underline the American Constitution. I do think the 14th Amendment does guarantee the right to same sex marriage, but the precedent set here is more worrisome.
I understand strict constitutionalism but this is like coming down against Brown v. BOE and expecting the states to sort out segregation on their own. The Court has to at times drag the country into line with what is just even if it isn't through democratic means
I suppose we just have different views on how our government should work. Fair enough.
I can see where he's coming from on that extent, but at the same time, you could view it as a sort of escalation. Someone brought it before a court, and the court said "such and such verdict". To those seeking that verdict, things made sense. To those who disagreed, it did not. So, they exercised their freedoms and pushed further. It eventually lands at the feet of the Supreme Court. It's clear, when it has reached that point, that the opinions of 320 million Americans are difficult to sort through when it comes down to constitutional interpretation, so we're trusting our final "escalation point" to interpret it for us, because "Well, we can't agree on this. What do you say?" And then they pass their verdict. This didn't remove the rights of 320 million Americans; on the contrary, there are those who exercised them to reach this particular point. Then again, in a contrary vein, when the question is really "do we treat these other humans like we treat us humans?" and there were people saying no we obviously shouldn't because reasons... well, we're just glad the Supreme Court is there.
> the opinions of 320 million Americans are difficult to sort through when it comes down to constitutional interpretation > "Well, we can't agree on this. What do you say?" Opinions of 320 million Americans don't and shouldn't matter in Constitutional interpretation—that's the whole point of an unelected judiciary. The court's job isn't to reflect the balance of public opinion, nor to anticipate the long-term direction public opinion is heading in. The court's job isn't to be the final arbiter of public debate, it's to assess whether statutory laws are in violation of the Constitution. > This didn't remove the rights of 320 million Americans I'm not convinced. Every single referendum on the subject of gay marriage came down against it until Iowa. The majority of states that had legal gay marriage before this decision had enacted it via judicial fiat, overturning public referenda or statutory law passed by the public's representatives. What is happening when five justices invent something unwritten in the actual text of the Constitution in order to overturn both the existing results of the democratic process and any future democratic initiatives/revisions?
If the 14th Amendment guarantees the right to same sex marriage, then same sex marriage has to be legalized. That was the precedent set here--following the constitution and the rights it guarantees to all citizens. Many of the arguments that Scalia made could easily have been made against allowing interracial marriage. Likewise, they could have easily been made against abolition, or integration. What the 14th Amendment does is fight the "tyranny of the majority"--it protects the rights of marginalized groups from majority rulings. If the majority always had its way, slavery and segregation would still be legal. Sometimes the majority is wrong. Just because a lot of people believe something does not necessarily make it right. Several hundred years ago, the majority of the people believed that the sun revolved around the earth. Seventy years ago, the majority of Americans believed that the races should be segregated. Sometimes, the majority takes away the rights of the few--and in those instances, we should be grateful that a document like the Constitution gives the Supreme Court the (seldom-used) ability to overrule the majority.
Avaiihn's comment sums up my response better than I could in my own words
#2 on today's Daily Beast Cheat Sheet: "Justice Scalia’s furious dissent in the Supreme Court case legalizing same-sex marriage exceeded his previous outbursts, not just in rhetorical flourish but in doctrinal conservatism." That's right: Scalia's choadyness actually made the headlines.
Not sure he beat his own dissent from yesterday in terms of rhetorical flourish. I give you jiggery-pokery.
I hate Scalia but you need Scalia. He forces shit to be more solid by way of providing a dissenting opinion. I don't think any ideas are truly thought out until you've had a few people shit all over them and try to prove you really, really wrong. If your idea still stands after that, you know you did the right thing, instead of assuming you did the right thing.
Wait, are you suggesting that b_b was the Scalia of team hubski? "That's the fucking dumbest idea I've ever heard." -b_b, multiple times after suddenly reengaging the conversation between hockey periods. And I miss it.
I was actually thinking about that as I wrote that comment! However, I didn't want to compare b_b to Scalia because... Fuck Scalia.
Oh boy. Scalia... That guy should've been a drama writer, but obviously you make a lot more money from supporting things like Citizens United and trying to ban abortion. He always falls behind really smart and important rhetoric and calls towards the spirit of the writers of the constitution and what the people of the time perceived to be true, but when it's something that his super-religious-self cares about, he suddenly forgets all of the spirit of the writers of the Constitution. It's so easy to dislike that guy...
If you want a real mind-bender, check out Roberts' opinion on the Obamacare thing. He pretty much wrote all the most relevant passages by entirely quoting Scalia's (very recent) opinions regarding reading an entire law in context. Scalia's cognitive dissonance is impressive.
Interestingly, I just that exact phrase in my little soapbox-rant on where SCOTUS' dissenting opinions are trending toward.
I have a lower threshold for comments. If you want something deeper than the Onion, Check out 29 pages of Robert's dissent. I've made it through 15.
I wanted to submit that article but didn't is all. The Onion does great work when presented with something so rife for satire. I submitted the Trevor Moore song because I really like it and wanted to share it today and didn't think it would go over so well with some people on my Facebook.