My recent entry on this blog citing a passage from Justice Antonin Scalia’s dissent in one of the new marriage-related Supreme Court decisions has prompted a left-leaning attorney to assure me, repeatedly, that “the legal community” is disappointed (to the point of contempt) by Justice Scalia’s performance as a member of the Court. Upon cross examination, though, the legal community, in this particular lawyer’s parlance, appears to mean something like “most of my attorney friends who’ve said anything to me about the subject.”
It’s difficult not to be reminded of the famous statement attributed to the late New Yorker film critic Pauline Kael, who, back in 1972, is said to have marveled at the outcome of that year’s presidential election: ”“I can’t believe Nixon won,” she is reputed to have observed. “I don’t know anyone who voted for him.”
Unfortunately, the remark is evidently apocryphal. But, fortunately, perhaps not altogether so: According to the New Yorker itself, she actually said “‘I live in a rather special world. I only know one person who voted for Nixon. Where they are I don’t know. They’re outside my ken. But sometimes when I’m in a theater I can feel them.”
In some ways, that version is even worse. She candidly acknowledges that she lives in an elite realm, hermetically sealed off from the crude peasants who surround her yet who are (unaccountably perhaps) permitted to vote. And she implicitly but unmistakably signals her disdain for them.
In the wake of the Supreme Court’s recent decisions — and, even, it has been argued, in one of them — there has been an outpouring of disdain for those who have doubts, however mildly expressed, about the wisdom of redefining marriage so as to include union between people of the same sex. (The most comprehensive collection of reasoned “conservative” arguments on the topic of which I’m aware can be found here.) This isn’t new, of course. It’s long been dogma in certain circles that such doubts are irrefutable signs of hatred, bigotry, “homophobia,” and irrational superstition; that expressing them constitutes a morally illegitimate effort to deprive a certain group of what all decent people know to be its inalienable human rights; and that those who utter such doubts merit neither respect or civility. Opposition to same-sex marriage puts one in the same class of moral monsters inhabited by Klansmen and segregationists, by Nazis and other anti-Semites. It can, and it has, cost dissenters their jobs, gravely damaged careers. Such intolerance, it is said, simply cannot be tolerated. Diversity is all-important, except as it pertains to ideas.
But back to the relative merits of Supreme Court justices.
Here’s some negative commentary on the quality of Mr. Justice Anthony Kennedy’s majority opinion in the DOMA case — one wonders how such sacrilegious lèse-majesté is even permitted these days! — from a man who, while he may not be considered a member of The Legal Community(c) in certain circles, appears to be a quite reputable lawyer. (I’m guessing, both from his views and from his biography, that he probably considers Mr. Justice Scalia to be one, as well.) He and others have been offering other very helpful perspectives here. Another attorney and commentator who probably doesn’t deserve membership in The Legal Community(c) skewers Mr. Justice Kennedy’s reasoning (and praises Justice Scalia’s) in this interesting column. And, finally, here’s a brief analysis of the inherent and fundamental self-contradiction within Mr. Justice Kennedy’s majority opinion by someone — a psychiatrist — who apparently hasn’t even sought admission to The Legal Community’s “progressive”-only country club.