Judging The Judges

Whatever else the conservatives on the Supreme Court may be, in their marriage-equality dissents they’re neither impartial nor innocent callers of balls and strikes, as Chief Justice Roberts famously pretended at his confirmation hearing.  (At least we can agree that “judicial activism” is defined, by all sides, as a decision with which one disagrees.) It doesn’t take much understanding of the law and the role of the Supreme Court to recognize that most of the verbiage in their dissents has nothing to do with it. Even Justice Kennedy’s opinion for the majority, poetic as it was in places, was full of irrelevance. Kennedy concluded:

“... It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

I agree, of course. But it’s only the last two sentences that are material; in fact, the whole opinion could have been rendered with those alone. Contrarily, the raging of Antonin Scalia couldn’t have been more unhinged. “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.”

As every high school student should know, that is astoundingly wrong. Surely he’s heard of judicial review. He even alluded to it, with the words “except as limited by a constitutional prohibition.” That’s precisely the job of the court: to determine when laws violate our constitution. He may disagree with the conclusion, but to say that it’s inconsistent with our democracy is to ignore a basic American judicial principle, settled since Marbury v. Madison. To conclude that the Constitution allows discrimination against an otherwise legal class of citizens is to forfeit claim to the label “conservative,” not to mention “Constitutionalist.” So he went for smoke and mirrors.

To the smacks of foreheads everywhere, Justice Thomas asserted, “…Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved…” That’s some strict interpreting.

Other than a weirdly inappropriate anthropology lesson, Mister Justice Roberts was more temperate if no less wrong: “… It is instead about whether, in our democratic republic, that decision should rest with the people… or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.” He’s right in his last sentence, but like Scalia, startlingly wrong in its application. Sure, this “redefines” marriage in the same way “Loving v. Virginia” did, and in the same way the Roberts court recently redefined “people.” But this was about equal rights under the law, nothing more, nothing less. It could just as well have been about the right of states to limit public schools only to heterosexuals, or to demand that they only include teaching the Bible. What could be a more fundamental role of the courts than determining whether the Constitution allows such things? Claims about love or children or Carthaginians on either side are extraneous. In making those sorts of arguments, the court IS defining marriage, which is NOT their job. Their job is to act when “the people” produce laws that are contrary to our Constitution, and when they do, to put a stop to it. Despite those bizarre dissents, that’s just what they did. If the furious four were what they claim to be, the decision would have been unanimous.

Predictably, and to the righteous waving of teabags, presidential candidates from the party of patriotism are lining up before the approving “journalists” at Fox “news,” to promise they’ll ignore the court. That’s much more than historical ignorance. It’s sedition, undisguised. Why do they hate America so much?

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