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.