Friday, June 26, 2015
The full majority and dissenting opinions are here. A few quick observations:
1. In finding an unenumerated right of same-sex couples to marry under the Equal Protection and Due Process clauses of the Constitution, the Supreme Court really for the first time since 1973 has found such a new right. (Lawrence v. Texas, the 2003 case rendering homosexual sodomy statutes unconstitutional, was decided on the basis of a "liberty interest" protected by the Due Process clause. If one treats that as part of the pantheon of "unenumerated rights" cases, it still gives a vivid sense of how rare such "discovery" of unenumerated rights has become.)
2. The dissents, especially by Chief Justice Roberts and Justice Scalia, complain that the majority has, in effect, exercised a quasi-legislative power, rather than a judicial one. I believe that is correct, but it is rich with irony coming from the conservative wing of the super-legislature, which has often exercised the same power for venal, rather than laudatory, ends.
3. This part of Justice Scalia's dissent is especially entertaining:
Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers 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 South- westerner 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 Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
It's good to see that mindless identity politics has arrived at the Supreme Court in the hands of a conservative Catholic from Brooklyn! But the most amusing aspect of this is the first sentence, and its parenthetical "or should not be": that parenthetical is there because even Justice Scalia knows that judges are not chosen for their legal skill but for their moral and political views. Everyone doing the selecting knows this.