Truth on the Losing Side


Justice Scalia’s dissents in the two same-sex “marriage” cases are worth reading. The first opinion addresses the idea of judicial supremacy within the federal government—what Jefferson called “the despotism of an oligarchy”:

“This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.”

The second dissent focuses on the smugness of the majority opinion, which blandly assumes every enlightened and good person must share their brand-new upper-class mores regarding marriage. Scalia is correct when he predicts that the anti-DOMA ruling is not the end of the matter. States’ rights was a subterfuge, not a motivation. It is only a matter of time before the Court forces every state to bend its knee before “marriage equality”:

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”


  1. Justice Scalia’s avowed deference to “democratically adopted legislation” is touching, especially coming from someone who voted to overturn the Affordable Care Act as well as D.C.’s gun ban. Such memorable but injudicious phrases as “diseased root,” “exalted conception,” and “real cheek” show Scalia at his venomous worst: a man who has always been more than willing to indulge his pique while simultaneously flaunting his sense of moral and intellectual superiority.

  2. Jack, You’ve got a point but Scalia’s inconsistency doesn’t negate the truth he’s telling in this instance.

  3. I’m not sure there’s inconsistency if he believes he did “power under the Constitution to invalidate” the previously adopted legislation. He doesn’t seem to be foreswearing the ability to invalidate legislation, just this particular piece.

  4. Justice Scalia actually only wrote one dissent yesterday, US v. Windsor, the DOMA case. He joined with Roberts’s opinion in Hollingsworth v. Perry, but did not write separately. Both of the excerpts you post here are from his Windsor dissent.

  5. Scalia can throw out wonderful-sounding words, but I lost any respect for him when he voted to make corporations people with rights under the Bill of Rights. So if even he doesn’t really follow these “truths” he’s telling, what hope is there?

    @Ryan: Of course he believes he does. I have a very liberal lawyer friend who alternatively says “no one really wants a literalist justice”, to which I reply “yes, I really do”, or says “every justice is a literalist until they disagree with you.” I am tempted to almost believe the latter. I’ve heard Scalia in person talk about his literalist approach to his work, but it’s only words that he’ll use when it suits him. He’s no literalist.

  6. Steven, Thanks for the clarification. I figured that out after I posted. Scalia didn’t dissent on the CA Prop 8 case because he voted with the majority.

    Is Scalia being inconsistent? Maybe. I don’t think he’s a consistent advocate of popular sovereignty or legislative supremacy. I don’t believe judicial review is a legitimate power. Scalia does. So he’s using some criteria to strike down acts of Congress and leave others intact. We can debate the merits of his criteria or the consistency of application, but, again, I think that misses the point. I, too, disagree with the Citizens United ruling but the SC gave corporations legal personhood long ago (1886).

    I’m not saying Scalia is a model jurist. I’m saying he made two important points that the corporate media are ignoring during their euphoric recounting of the news. Ad hominem attacks, even if justified, do not change that fact.

    BTW, I see that my link no longer works. Maybe the Supreme Court server couldn’t handle the traffic today? Hopefully the link will work in the future. The entire dissent is interesting.

  7. I think part of the key to understanding Scalia and his apparent contradictions is knowing how he understands democracy. As an originalist, he sees democracy as something stretching beyond the present, such that the people of the past continue to have a voice in the present through the Constitution. So his reference to democracy includes the ‘votes’ of those who came before, as embodied in that document.

    In that sense, he seems to echo the conservatism of G.K. Chesterton who said, ‘Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about.’

    Is Scalia consistent even through that lens? Not always, but it is a lens that I think corrects many misunderstandings of Scalia’s jurisprudence.

  8. There’s some very interesting jurisprudence theorizing being put forth in these comments.

    Apparently I, as a male adult, have the right to insist that the government recognize my “marriage” to another male adult, extending me all the rights and privileges pertaining to that historical state. Also the government has the right to force me to compel me to purchase health insurance. Aren’t I the lucky one!

    I hesitate to ask under this theory how exactly I, as an adult male already married to an adult female, do not possess the right to insist on the government recognizing my “marriage” to another adult female. I suspect the answer will be “Shut up, you bigot.”

    Also, Michael Moore’s movie company has the right to show a movie whose message is “Don’t vote for Bush” but Citizens United does not have the right to show a movie whose message is “Don’t vote for Hillary.” Also, the government could shut down the New York Times corporation if it wanted to.

    But Antonin Scalia is the deranged bigot in the room.


    Stop the world, I want to get off.

  9. Scalia is like the little girl with the curl in the middle of her forhead… not that he’s in the least feminine, but, when he is good, he is very very good, and when he is bad he is horrid. I particularly appreciated his concurrence in the Apprendi case (all elements of a crime that increase the maximum sentence must be found by a jury, not the judge), and his blunt response to Breyer’s pragmatic dissent. Breyer pushed administrative efficiency. Scalia wrote about the common fallacy that the constitution means what we would like it to mean — it does not, it means what it says.

    The demand for “marriage equality” is, in my seldom humble opinion, an example of expecting the constitution to mean “what we would like it to mean.” The “equal protection” argument is bogus. If any court stopped to define its terms, e.g., “What IS the definition of marriage?”, it would either find that civil marriage is a legal construct to regulate and license one specific human relationship, that between man and woman, or, they would get bogged down trying to write any other definition coherently, and never complete a ruling. But, blithely bypassing the need to define terms, they find that a class denominated homosexuals had been deprived of access to the abstract thing called marriage. Actually, no person has been denied access to marriage — some persons don’t want it.

    I don’t share Scalia’s fear-mongering that a federal constitutional ruling on “marriage equality” inevitably flows from either Lawrence v. Texas (where he wrote much in the same vein), or the Windsor decision. I think the sense of an irresistible tidal wave is due in large part to the poor quality of argument put forward by the so-called Christian law firms who have been handling these cases. A straightforward secular argument, applying well-established precedents, and undisputed biological facts, has never been presented. Sexuality is heterosexual in nature and origin. Without heterosexuality, there would be no sexuality, and therefore no homosexuality. That some individual are hormonally attracted to their own sex is a collateral accident of imprecise chemistry. There is no particular reason the government should take note of it. What the government DOES provide for must apply equally to all. Legally, I am just as free to engage in homosexual liaisons as those who actually want to — and that is the essence of equality before the law.

    I think Lawrence was properly decided — based on right to privacy, not equal protection of the laws. I thought when DOMA was passed that it was an unfortunate infringement of state jurisdiction by the federal legislature. I would, very reluctantly, have voted for Prop 8 if I had lived in California, not because I care that much if the state licenses same-sex couples as a marriage, but because a constitutional amendment is the only recourse to overturn a badly reasoned Supreme Court ruling — in this case, the state’s supreme court.

    Scalia showed himself a hypocrite the SAME DAY the Windsor decision was released, by blithely overturning another legislative enactment, the Voting Rights Act. The majority on that decision indulged in semantics, rather than constitutional jurisprudence. This is all too common from the left, right, center, and all the rest of the judiciary. While the decision refers to facts having changed, the only salient point for constitutional review is that the 15th Amendment authorizes congress to enforce voting rights by appropriate legislation. Case closed as far as judicial review goes.

    I’m not flatly opposed to judicial review. If the constitution is to be more than a piece of paper, some effective body must be in a position to tell the legislature “You have not the power to impose this law upon the people.” Legislatures do have real powers, enumerated in the case of the congress. But no legislature can be the judge of its own jurisdiction. On points like this, I’m more of a fan of James Madison that Jeff is. I’m concerned that states can be quite as much an instrument of tyranny as the federal government. Our liberties are best protected by a creative tension between the two, so that neither sovereign is absolute.

  10. The problem with Scalia’s reasoning is that it leaves no mechanism by which the minority will – in general – be protected from the whim of the majority. Scalia’s logical conclusion requires a narrow set of “fundamental” (usually enumerated) rights – all because he fears the “oligarchy” of a court. But any defense of a minority view is by necessity overruling the majority will of a legislature, state or federal. So if not the court, then who?

    As Randy Barnett has pointed out, the real news in these cases is that justice Kennedy is quietly pioneering a whole new line of reasoning Barnett calls “the presumption of liberty.” It is no longer the court’s job to define a “fundamental” (or enumerated) right in order to protect it, but rather a legislature’s job to justify impinging on the general right of liberty that we all hold. And this justification cannot be an arbitrary “we want it this way” or “we’re a state so we can do what we want” reason. General legislative power, even at the state level, is STILL limited by liberty. A law that takes away any liberty must be justified on the basis consistent with the constitution’s enumerated powers. It’s the 14th plus the 9th Amendments at last.

  11. I think one of the things lost here is that Scalia would have, in denying standing to BLAG to challenge DOMA, effectively given Obama retroactive veto power over the laws. In my mind this, had it been the adopted rule, would have destroyed the very idea of co-equal branches of government. I think Alito had it right on standing.

    I also think the Alito dissent was worth reading for another reason. Alito, in his Windsor dissent, painstakingly discusses the actual disagreement over the issue in great detail and the reasons why the Constitution should not be seen to settle the issue. I personally think he errs in his last two paragraphs which trivialize what this pervasive federal regulatory matter does to the states but this is a fairly minor disagreement (and at any rate it is only one which affects DOMA, not the states).

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