Justice Scalia’s Dissent

And now on the dissent of Justice Scalia, who joined in Chief Justice Roberts’ primary dissent but writes separately to, in his words, “call attention to this Court’s threat to American democracy.” Scalia, like virtually every other judicial and legal conservative, makes arguments against judicial review itself while pretending to make arguments only against the result of a particular case.

After saying, quite disingenuously I’m sure, that he really doesn’t care whether gay people are allowed to get married or not, he then proclaims that the only thing he cares about is the process by which that comes about. Should the people decide themselves through the referendum or legislative process or should “unelected judges” — like him — decide? After voting to strike down innumerable laws himself in dozens of cases for the past nearly 30 years, he suddenly has decided that the notion of judges overturning the will of the people is a terrible threat to democracy and the country:

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.

He is doing here what conservatives always do, just a bit more subtly. When he speaks of “liberties that the constitution and its amendments neglect to mention,” he is making the same old argument that if a right is not explicitly mentioned in the text of the Constitution, the government has full authority to regulate or prohibit it. But this completely ignores the notion of unenumerated rights and does exactly what the founders themselves warned against doing.

One of the great arguments that took place among the founders was over the need for a Bill of Rights. Some argued that it was not enough merely to limit government through such provisions as the checks and balances and separation of powers inherent in the governmental structure that the constitution provided. It should be set out in no uncertain terms, they said, not just what the government may do – the authority granted to the government – but also what the government may not do. Others countered that by specifying only certain rights, it would leave the impression that anything not specified would be fair game for the government to regulate or prohibit. James Madison, during the deliberations on the framing of the Bill of Rights, proposed the 9th amendment specifically to allay such fears. He introduced the proposed 9th amendment by saying:

“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].

This amendment passed both the House and the Senate with virtually no opposition, and little change in wording, and the final version of the 9th amendment reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But conservatives today, every time the court recognizes and protects a right not explicitly listed in the text of the Constitution, take the one position that Madison makes clear you cannot take, that the listing of specific rights means that no other rights exist that must be protected.

But as with the charge of “judicial activism” and “legislating from the bench,” they only do this when it suits their purposes. The Supreme Court has protected all manner of unenumerated rights that Scalia happily supports, like the right to send one’s children to private schools (Pierce v Society of Sisters) or the right to travel between states (Saenz v. Roe). Would Scalia rail against “unelected judges” who are now his “ruler” because they protected those rights? Of course not.

What is remarkably consistent is that when conservatives react most vociferously with this absurd argument is when it involves the right of people to control their own sex lives. They raged, and continue to rage, against the court’s ruling in Griswold v Connecticut, which protected the right to use birth control. And of course, against Roe v Wade. But Scalia himself also made this same argument in Lawrence v Texas, in which he said that “unelected judges” had no authority to not allow the states to throw gay people in jail.

Much like conservative politicians suddenly discover the crucial nature of “fiscal responsibility” the moment a Democrat is elected president, conservative judges and legal scholars, after gleefully cheering on “unelected judges” as they overturn laws they disapprove of, suddenly discover that judicial minimalism is the very cornerstone of a democratic society whenever a case involves someone’s right to control their own bodies and their own sex lives. Something tells me this is not merely coincidental.

But here is the weirdest passage from his dissent:

“Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.”

“Ask the nearest hippie.” He actually wrote that in a Supreme Court opinion. And this whole passage is just bizarre. Is he trying to talk gay people out of getting married? Of what possible relevance is this to the legal issues at hand? It’s just more evidence that at this point Scalia is just the cranky old fart of the court, yelling at everyone to get off his lawn.

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  • Hoosier X

    A summary of Scalia’s argument would be:

    It’s Adam and EVE, not Adam and STEVE.

  • Pierce R. Butler

    The nearest hippies to me have an open marriage, Tony. They seem to do just fine that way…

  • http://www.facebook.com/Decnavda timothycarter

    Thursday Justice Scalia said that we had to ignore the clear intent of the drafters of the Affordable Care Act because if we do not follow the exact words of one sentence of the act, we declare that words have no meaning. Friday he said that the words in the 14th Amendment declaring that states cannot deny equal protection of the laws cannot mean that states cannot deny marriage licenses to same-sex couples because that was clearly not what the drafters of the 14th amendment intended.

    Yes, a great champion of judicial consistency, that man.

  • Katie Anderson

    And in Lawrence v Texas the court made it clear that there a right to privacy in intimate sexual conduct between consenting adults. That sure seems like a “right to intimacy” to me…

    http://farm1.staticflickr.com/234/522498210_b2a45eb896.jpg

  • http://www.ranum.com Marcus Ranum

    “Ask the nearest hippie.” He actually wrote that in a Supreme Court opinion.

    Term limits for supreme court justices … not such an awful idea.

    (Besides I hate hearing about how some of them are suffering but hanging in there in order to not retire during the wrong presidency…)

  • D. C. Sessions

    Now apply this dissent to Shelby County and see which case fits better.

    Scalia’s principles have long been known to be very flexible depending on what it takes to get the Right outcome.

  • Hoosier X

    He’s an embarrassment to the country and an embarrassment to the court.

    He’s not really an embarrassment to the GOP. This is pretty typical hypocrisy for the GOP, and he should be commend for stifling the urge to explicitly compare the majority decision to something cooked up by Hitler, the Nazis, Stalin, Pol Pot, etc. Good job, Mr. Scalia!

    Also, he’s not an embarrassment to the Catholic church because so far he’s managed to keep his hands off the little boys.

  • llewelly

    Spirituality has been a freedom ever since the 21st amendment repealed prohibition. At least, that’s how those of us who believe in whisky on Sunday mornings see things.

    If you believe in church on Sunday mornings, then spirituality is a freedom enshrined in the 1st amendment.

  • Hercules Grytpype-Thynne

    @D. C. Sessions:

    My first thought exactly. The hypocrisy is astounding.

  • Al Dente

    Scalia claims to be a “Constitutional originalist”, i.e., someone who follows the “original intent” of the writers of the Constitution. However, as timothycarter notes @3, he doesn’t consistently follow this legal philosophy. In reality, Scalia is a Catholic, conservative ideologue who follows his political and sociological preferences.

  • Al Dente

    Hoosier X @7

    Also, he’s not an embarrassment to the Catholic church because so far he’s managed to keep his hands off the little boys.

    Scalia’s not a priest so he’s not into little boys.

  • jameshanley

    Well said, Ed. Scalia claims to be a textualist, but can be said to not only ignore the 9th Amendment, but to directly violate its requirement the the Bill of Rights shall not be construed to deny or disparage orher rights of the people.

  • http://artk.typepad.com ArtK

    I ran into a bozo on Facebook yesterday who, when Scalia’s hypocrisy was pointed out said “Past cases don’t matter.” Of course the first clue that this was a bozo was the confederate flag he was using as his avatar.

  • Reginald Selkirk

    If Scalia thinks that “unelected lawyers” should not be making such decisions then

    1) He should have recused himself from this case.

    2) He is clearly in the wrong line of work.

    I suggest everyone read Scalia’s opinion in full. There is so much more to laugh at. He calls it a “truth” that Californians are not “genuine” Westerners (do they wear kilts?). And in the midst of this senile rant, he actually criticizes the majority decision for tone.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    I’m his ghostwriter. He rewrote what I sent him. “Harrumph!”, it read.

  • Cal

    I heard this last argument during the last couple years which I think basically boils down to “Fine, you will get marriage equality but you are not going to like it!” They try to make marriage look and sound unappealing. I would usually reply that their description of marriage makes me feel like their own relationship must not be a very happy one but I actually know many couples, gay and straight, who are extremely happy in their relationships.

  • Al Dente

    Reginald Selkirk @14

    He calls it a “truth” that Californians are not “genuine” Westerners (do they wear kilts?).

    That’s a dig at Kennedy, who comes from California.

  • raven

    I thought I’d try to unpack Scalia’s word salad for fun.

    Really? Who ever thought that intimacy and spirituality (whatever that means) were freedoms?

    This has been a bedrock assumption for about forever. Intimacy, meaning strong social bonds, is a mammalian characteristic that goes back to the Cambrian. Spirituallty is tied in with religion and freedom of religion is a core US value and in fact, is part of our constitution and law.

    And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage.

    Dictionary meaning INTIMATE: having a very close relationship : very warm and friendly

    : very personal or private

    : involving sex or sexual relations

    Scalia appears to be using intimate as “having sex”, confusing because it isn’t the only meaning. The idea is being married restricts your sex life. Which is nonsense. It can go either way depending on the people, time, and marriage. In any event, if people choose monogamy, that is a voluntary choice between two people.

    Ask the nearest hippie.

    Scalia seems to be referring to the idea of “free love”. Which wasn’t a term or idea too common even during the hippie era. And relies on a simple minded stereotype. Most hippies long ago got degrees, got married, had careers, and these days have a more or less normal life.

    This is just a rant and rave and not at all intelligent or coherent. The fact that a Supreme Court justice wrote it just shows you can be an idiot and sit on the…Supreme court.

  • dingojack

    Hoosier X (#7) – well NOW he keeps away from kiddies. But back in the eighties, I hear he and Glenn Bek …

    Modusoperandi (#15) – he was going to add “– an get off’n my lawn, ya young whippersnappers!” but he had a “seniors’ moment” and it slipped his mind.

    😉 Dingo

  • dannorth

    Thanks to the power of the Internet for being able to check that the quote about the 9th amendment being an inkblot on the U.S. constitution that I was about to attribute to Scalia was actually from Almost Justice Bork.

    If the quote wasn’t Scalia’s however he clearly shares the sentiment.

  • theguy

    @18

    “Scalia seems to be referring to the idea of “free love”. Which wasn’t a term or idea too common even during the hippie era. And relies on a simple minded stereotype. Most hippies long ago got degrees, got married, had careers, and these days have a more or less normal life.”

    Yeah, I was really scratching my head on that one. How does getting married reduce someone’s ability to be intimate? Maybe they have to be intimate with only one person, but the government doesn’t arrest people for adultery anymore. “Freedom of intimacy” to me is very clear; the government can’t arrest or harass two consenting adults for the type of sex they have in private.

    “Freedom of spirituality” is, of course, found in the First Amendment. If Scalia is so ignorant that he doesn’t know where to find that freedom, why is he still on the Court?

  • D. C. Sessions

    If Scalia is so ignorant that he doesn’t know where to find that freedom, why is he still on the Court?

    Because there are, in practice, only two ways to leave the court:

    * voluntarily (think Justice O’Connor)

    * feet first

    The first requires character traits that Scalia obviously lacks, and the second is proof that prayer is ineffective.

  • John Pieret

    Where the fuck is it in the Constitution that corporations are “people” who can spend unlimited dollars in a blatant attempt to buy elections?

  • http://drx.typepad.com Dr X

    Then there’s this complaint in Scalia’s dissent:

    Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 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 Americans19), or even a Protestant of any denomination.

    He goes on to say:

    the highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

    Yet, 56% of the justices voted to recognize a right to same-sex marriage, while somewhere between 57-63% of the American public supports same-sex marriage. Despite being demographically unrepresentative of the American public, the vote of the justices quite nicely reflects the views of the American public, including the screeching, bitter minority of dead-enders.

  • dingojack

    “If Scalia is so ignorant that he doesn’t know where to find that freedom, why is he still on the Court?”

    $255,500 p.a.

    Dingo

  • tbp1

    Was this guy ever really a sharp legal mind? As far as I can tell he’s always been a totally results-oriented hack, who clearly regards his job as delivering the right decisions for his bosses, Constitution be damned. Do people really find his wordplay clever?

  • howardhershey

    A wise man once said, “It’s never the principle. It’s always the specifics.”

  • Reginald Selkirk

    Al Dente #17: That’s a dig at Kennedy, who comes from California.

    Yes, and now entered as part of the record of the Supreme Court, preserved for posteriority. Centuries from now, readers will be able to discern that Scalia was an ass-hat. This in the same dissent in which he criticizes the majority for tone.

    Maybe I’ll use that White House petition web site to request that Scalia be impeached for senility.

  • raven

    Was this guy ever really a sharp legal mind?

    Good question. Scalia is 74. But I doubt very much if he was ever anything but a partisan hack.

    Do people really find his wordplay clever?

    I don’t think most people even care. What he wrote was badly written so you need to translate it into English. When you do translate it, it is mostly wrong and the rest is simply irrelevant.

    He cites hippies as authorities on how marriage restricts your “intimacy and spirituality”. Which is just absurd and wrong. I’m sure what used to be hippies got married and divorced at the same rate as the general population for the same reasons.

  • D. C. Sessions

    He does have a point about the lack of Ivy-educated Western Protestants.

    I suspect that he could cut a deal where Obama would appoint one if Scalia stepped down.

  • D. C. Sessions

    s/Ivy/non-Ivy/

  • Pierce R. Butler

    raven @ # 18: Intimacy, meaning strong social bonds, is a mammalian characteristic that goes back to the Cambrian.

    The Cambrian?!? They finally found that missing bunny rabbit fossil?

    Dr X @ # 24 (quoting Scalia): … a genuine Westerner (California does not count).

    Wait till the Reaganophiles connect the dots on this one! (Okay, they don’t move real fast that way…) Still, when you recall how much mileage the “corporate personhood” shysters got out of a single footnote in that 19th-century Santa Clara Railroad case, the potentials for mischief here abound. (“No, California should operate as part of the Atlantic time zone, so ballots from polling stations anywhere south of Oregon must be invalidated…”)

    Good thing Scalia didn’t write this as part of a majority opinion, giving it permanent legal weight. If hippies per se counted as legal authorities, all our courthouses would end up smelling of hemp and patchouli, and wingnuts would have to howl about unelected tyrants in rainbow and tie-dye robes.

  • lofgren

    “Free Love,” to the extent that it was used as a political slogan, primarily meant things like no-fault divorce, an end to legal marital rape, and better enforcement of existing rape laws (which in practice were only enforced if a higher class woman was violently raped by a lower class man with whom she had no prior contact and/or was Black). The slogan was ever so briefly corrupted by hippies who used it to get laid, but I’d better dollars to doughnuts its been used by TV and movie hippies far more than it was ever spoken in real life.

  • Hoosier X

    @Dr. X,

    So, based on Scalia’s dissent, California is not in the Southwest.

    I also couldn’t help but notice that, in this excerpt from Scalia’s dissent on the demographic make-up of the high court, he doesn’t say anything about Catholics being overrepresented. Was that left out of the excerpt, or did Scalia neglect to mention that?

  • Lady Mondegreen

    I also couldn’t help but notice that, in this excerpt from Scalia’s dissent on the demographic make-up of the high court…

    His sudden concern about demographic representation is touching, isn’t it?

    …he doesn’t say anything about Catholics being overrepresented. Was that left out of the excerpt, or did Scalia neglect to mention that?

    Oh, burn. I hope the world points and laughs at him for that, forever.

  • caseloweraz

    Scalia: 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.

    It would serve Scalia right if everyone starts quoting Han Solo to him. There’s no need to come up with absurd examples; just mention Citizens United (as John Pieret did in #23.)

  • http://drx.typepad.com Dr X

    Hoosier X:

    He doesn’t specifically mention Catholics or Jews. Top of page 74:

    http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

  • DaveL

    It seems to me that marriage equality doors nothing but enhance the ability of the people to govern themselves – at the level of their own families and their own relationships, not their neighbours’ families and relationships, which were never legitimately within their sphere to govern in the first place.

  • cptdoom

    He seems pretty upset for someone who predicted the reasoning and nearly the exact wording of Kennedy’s decision, not just in Windsor, but all the way back to Lawrence. In his dissents on those cases he demonstrated a keen legal mind, even if he was appalled at the ramifications of that reasoning. This is just a hissy fit.

  • Hoosier X

    Well, it’s nice to see he’s so concerned about demographics and representation when so many conservatives are so prone to mock such things. Wasn’t it a Reagan-era official who said, “I have a black, a woman, two Jews and a cripple”?

    But Scalia has shown himself to be a consistent jurist and I’m certain he’s shown concern about representation before.

    Hello?

    Hello?

    (tap tap)

    Is this thing on?

  • Hoosier X

    @Dr. X

    I’m glad to see you are OK. You weren’t at the X family reunion a few weeks ago and everybody was asking about you. Professor X brought his famous strawberry-rhubarb cobbler. Mr. X and Madame X got into a fight during the softball game, We discussed the plans for the 50th anniversary memorial for Malcolm X. And the cops were called when Robot X ran amok and tried to enslave mankind.

    Trudy X says hi and Grandma X wants to know if you liked the sweater.

    Perhaps I’ll see you at Citizen X’s birthday party.

  • Michael Heath

    dannorth writes:

    Thanks to the power of the Internet for being able to check that the quote about the 9th amendment being an inkblot on the U.S. constitution that I was about to attribute to Scalia was actually from Almost Justice Bork.

    If the quote wasn’t Scalia’s however he clearly shares the sentiment.

    C.J. Roberts’ dissent didn’t merely dance around the 9th Amendment, he acted as if it didn’t exist and premised his argument that the only rights protected are those granted to us by government.

  • gshelley

    @29

    Born March 1934, so he is 79, not 74

    Next year is his 80th birthday and 30th anniversary of joining the court

  • gertzedek

    So…in Scalia’s mind, “freedom of spirituality” isn’t pretty clearly part of freedom of religion, no matter how you define it?

  • sugarfrosted

    A bit late, but the headline should read “Justice Scalia’s Descent into Madness”.

  • scienceavenger

    @40 Wasn’t it a Reagan-era official who said, “I have a black, a woman, two Jews and a cripple”?

    That would be Secretary of the Interior James G. Watt.

  • whheydt

    Re: gshelley @ #43….

    Wrong at first glance. He was born March 11, 1936.

    FYI…GInsberg is older…she’s 82. (Born March 15, 1933)

  • D. C. Sessions

    C.J. Roberts’ dissent didn’t merely dance around the 9th Amendment, he acted as if it didn’t exist and premised his argument that the only rights protected are those granted to us by government.

    He makes up for it with his deep reverence for the Tenth, to the extent of overriding later Amendments such as the Fifteenth.

  • sabrekgb

    This is one of my favorite opinions ever. Love the bombs he tossed at California, too.

    Not a single Southwesterner [is on the court]

    or even, to tell the truth, a genuine Westerner

    (California does not count).

    I lol’d so much.

  • marcus

    Torquescalia: “And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage.” Ask the nearest hippie.

    Well since you asked.

    We are, and always have been, pretty much:

    “Do whatever you fucking well please! Just don’t hurt anyone else, and if your contemplating doing something naughty… get permission first.”

    There, see, easy peasy.

    You’re Welcome.

    PS: Being married to Scalia must be a real blast.

  • Hoosier X

    That would be Secretary of the Interior James G. Watt.

    His funny joke about Jews and cripples cost him his job.

    Nowadays, it would make him a perfect choice for the GOP nomination for the presidency … or a GOP pick for the Supreme Court.

  • sugarfrosted

    @50 It gets you that Koch money through Heritage, so it’s a living I guess.

  • gshelley

    @47 – typo. The age was right, I just typed the wrong number for birth year

    One thing that always interests me is despite the claims to the contrary, many on the right seem to think that rights come from government and are not innate. Hence if it is not in the constitution, it isn’t a right people have, or for those that are willing to admit the 9th amendment exists, if the Founders wouldn’t have considered it a right, it isn’t one. Of course, if the Bill of rights is merely listing some of the more important examples of rights that no legitimate government can abridge, rather than saying “hmm, we will give you these”, then the founders opinions on them is not particularly relevant.

  • http://motherwell.livejournal.com/ Raging Bee

    …Scalia is just the cranky old fart of the court, yelling at everyone to get off his lawn.

    He’s not “just” that, by a longshot. He’s a bigot, a bully, and a hateful, terrified authoritarian, who quite possibly hates our freedoms even more than Osama bin Laden ever did. He’s a fascist who will use whatever power he has to crush everyone he hates at every opportunity. The biggest difference between Scalia and Arpaio is the job titles. Treating either one of them as harmless old farts endangers all of us. This is precisely the kind of person our Constitution was written to protect us against.

  • http://www.skeptimusprime.com Skeptimus Prime

    @29

    For accuracy, Scallia is actually 79.

  • http://motherwell.livejournal.com/ Raging Bee

    …one would think Freedom of Intimacy is abridged rather than expanded by marriage.

    Damn, I’m getting old — I remember the days when gays were ridiculed for NOT abridging their sex lives by committing to one partner each. Now they want to commit, instead of cruising for anonymous sex with multiple partners in bathhouses, and they’re getting ridiculed for that too. Are these so-called conservatives even grown-up enough to be called hypocrites?