I’ve written about Supreme Court Justice Antonin Scalia before, and labeled him a judicial hypocrite. That hypocrisy was apparent in his opinions on two recent Supreme Court cases.
On Monday, Justice Scalia signed on to the Court’s majority decision to strike down some provisions of the Voting Rights Act. By ‘signed on’ I mean he didn’t write an individual opinion, he simply signed the ruling written by Chief Justice John Roberts. Justices always have the right to write a concurring opinion (if they agree with the majority ruling, but for somewhat different legal reasons) or a dissenting opinion. Signing the majority opinion indicates agreement with the ruling and the legal reasoning underlying it.
Why is that important? Because in overturning sections of the Voting Rights Act, the Court was overruling an act of Congress passed in 1965 and re-authorized in 2006. Justice Scalia apparently had no problem with overturning legislation that’s been in effect for nearly half a century.
This is where the hypocrisy comes in. The very next day Scalia issued an excoriating dissent in the case that overturned elements of the Defense of Marriage Act. In his dissent, Scalia wrote:
“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 […] That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive.”
Got that? On Monday he essentially agreed the Court could assert judicial supremacy over Congress by kicking the Voting Rights Act to the curb. On Tuesday he argued the Court can’t assert that supremacy in regard to DOMA. And he apparently sees no inconsistency in those two positions. That would be shocking in any other Supreme Court Justice, but Scalia has always shown a willingness to ignore his previous judicial positions in order to attain the ideological outcome he believes is ‘correct.’
I dislike Antonin Scalia as a judge and as a person — but there’s no denying he’s a brilliant rhetorician. In his bombastic and vitriolic dissent of the DOMA case, he made one prescient observation. He wrote:
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition…. No one should be fooled; it is just a matter of listening and waiting for the other shoe.”
And he’s right. He’s an asshole about it, of course. He apparently fails to see any irony when he suggests the people who consider gay folks to be ‘enemies of human decency’ could be labeled the enemies of human decency. But he’s absolutely right. Proponents of marriage equality will challenge the law in every state that denies same-sex couples the ability to marry.
Scalia was equally right a decade ago in his dissent in Lawrence v. Texas, in which the Court struck down the sodomy law of Texas. That effectively invalidated sodomy laws in thirteen other states, thereby making same-sex sexual activity legal throughout the United States. In his dissent in Lawrence, Scalia wrote:
“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘[t]he liberty protected by the Constitution?'”
There you have Justice Antonin Scalia in a nutshell. He believes ‘moral disapprobation’ should be a determining factor in what behaviors are considered legal or illegal. He’s not burdened by consistency in his judicial opinions. He mocks the people who disagree with him. He’s exceedingly intelligent.
And he’s right — about this, at least. What justification could there possibly be for denying the benefits of marriage to homosexual couples? None, Justice Scalia. There’s no justification at all.