Justice Scalia, Same-Sex Marriage, and the “Progressives”-Only Country Club


The lovely Augusta National Golf Club — new headquarters for The Legal Community?
“No __________ need apply!”


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.



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Luxuriating in German cultural history
The Supreme Court hands an 8-1 victory to advocates of religious rights
  • Scott_Lloyd

    Projecting his own contempt for Scalia on the entire “legal community” strikes me as juvenile — similar to a middle school bully telling his victim, “Nobody likes you.”

    • DanielPeterson


      Of course, I don’t doubt that lawyers as a class tend to lean left-ward. After all, more regulations and greater government intrusion are in their class interest.

      To take an extreme example, tort lawyers, I believe, have been scientifically proven to be 175.32% Democrat.

      • mike

        I don’t know how the statistics break for lawyers as to political philosophy and affiliation. It could be a fairly even split between those who call themselves liberals or conservatives. However, while practically all right leaning lawyers would be fiscally conservative, a vast number would probably look the other way when it comes to social issues.

        • Michael Hoggan

          My biggest concern about the legal profession in general is due to an experience I had about 12 years ago.
          I was taking a brief class at the Stanford University law library for a degree from another institution. (It wasn’t a JD). We were going over the use of lexis-nexus and westlaw to find information. The instructor also took the time to lecture on a few subjects relating to legal education.
          I noticed during the course that pretty much the only thing we talked about was court rulings (“case law”). I asked the instructor why we weren’t talking about the actual written texts of laws. The reply was that they didn’t cover those much in the law school since lawyers spent the vast majority of their time on case rulings. Apparently, statutory law was learned in an on-the-job manner.
          If her statement is generally correct, I believe that constitutes the heart of the problem.

          • RaymondSwenson

            There is a vast body of Common Law inherited from the UK that consisted ONLY of case law until some areas were codified in statutes. That was the case with criminal law, with the law governing inheritance, landlord-tenant law, business transactions, and with the law governing employment. It is still the case with tort law (negligence, etc.) , real property, and contracts in general. On the other hand, environmental law is based primarily on statutes enacted since 1970 and the thousands of pages in regulations. Constitutional law starts with a very short statute, and then becomes lots of court decisions interpreting it and applying it to various facts and various Federal and state statutes.

            The Common Law tradition of judge.made law has affected the way we build similar structures of judicial precedent in field like constitutional law, an approach very distinct from the way law works in continental Europe.

          • Michael Hoggan

            The focus on court cases makes more sense to me now.

  • mike

    An attorney invoking the “legal community” to lend credence to his personal views is like a politician claiming that the “American people” knows that his or her position is the most correct. I seem to recall the President claim that the American people support his prized Affordable Care Act in an attempt to prop up this esteemed program. In the legal profession, we call such claims ipse dixit.

    I have read a good number of Scalia’s opinions and think he generally renders the right decision, or appropriately dissents. And (gasp!) I’m not alone. There are a number of lawyers at my own firm who feel the same way. I guess that means that the legal community is unabashedly pro-Scalia.

  • RaymondSwenson

    Scalia was one of the Founders of the Federalist Society, which includes lots of lawyers with a similar conservative legal philosophy. I would summarize it as a recognition that preserving democracy requires constraint on the power of the judiciary yo make decisions outside the bounds of the rules established by the people and their elected representatives. Scalia himself is not a perfect example of the principle, voting with the majority in the Prop 8 case instead of supporting the dissent.

  • RaymondSwenson

    Claiming that all lawyers support your argument is one of the specious arguments from authority that law school taught us was a sure sign of weakness in your case.

  • brotheroflogan

    Scalia’s dissent was very intelligent. I have heard liberals praise his intelligence at least.
    And Kennedy’s reasoning is flawed because he was trying to get one result without “going all the way” and declaring all prohibitions against same sex marriage as unconstitutional.