Justice Scalia Loses Big

          
            Poor Justice Scalia. 

            It’s not just that he was on the losing side of all three of last week’s blockbuster decisions. Despite his insistence that “it is not of special importance to me what the law says about marriage,” it’s hard to imagine that Justice Scalia is taking the results of those cases impassively. He is, after all, a devout Catholic and an avid user of Fox News.

            It was bad enough that he lost the substantive policy debate on three major issues. What must have made it worse for him, though, was having to swallow the fact that five of the other justices, in Obergefell v. Hodges signed on to an opinion with the following language:

The generations that wrote and ratified the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.

            This language may seem unremarkable.  But for Justice Scalia, it represents an explicit rejection of an approach to interpreting the Constitution that Justice Scalia has championed throughout his tenure on the Court.  It is now Supreme Court precedent, binding on all other U.S. courts.  The pill is all the more bitter because of the three other conservative dissenters, only Justice Thomas was willing to sign on to Justice Scalia’s opinion.

            Justice Scalia rejects the idea that the Constitution is a living document capable of evolving as American society evolves.  He says, instead that “when it comes to determining the meaning of a vague constitutional provision,” the Court must read the provision to mean what the people who ratified the provision understood it to mean.  In Obergefell, Justice Scalia says “it is unquestionable that the People who ratified  . . . [the due process and equal protection clauses of the 14^th Amendment] did not understand it to prohibit” States from banning same-sex marriage.      

            Scalia’s insistence that 21^st century America is bound by 19^th sensibilities is not as crazy as it sounds. His argument is that particular language was presented to particular people for ratification and they chose democratically to adopt it based on what they thought it meant.  Had the people who ratified the 14^th Amendment understood that the Supreme Court, over 150 years later would read it to guarantee the right of same-sex couples to marry, they probably would have been aghast. In this, Justice Scalia is probably right.

            When the Supreme Court makes a constitutional ruling, it can only be undone by another Supreme Court case or by a constitutional amendment, which requires the assent of two thirds of the House of Representatives, two thirds of the Senate and three quarters of the States. Those are high hurdles.

            What concerns Scalia is that because it is so hard to undo a constitutional ruling, finding a new right effectively ends the democratic discussion taking place in the states. His view is that if the people of a state want to allow same-sex couples to marry, they can elect people who will pass laws making it so; if people in a state don’t want to sanction same-sex marriage, they can pass laws banning it.

            In Scalia’s view, this is what democracy requires.  The idea that five unelected and unaccountable members of the Supreme Court can substitute their judgment for that of elected representatives of the people in a way that cannot be effectively challenged is, for Justice Scalia, anathema. He wrote his dissent, in Obergefell “to call attention to this Court’s threat to American democracy.” 

            This sentiment is overblown.  There was no “judicial Putsch” as he calls the majority opinion.  American democracy still lives.

            Justice Kennedy’s approach is far more consistent with American legal tradition.  The men who wrote our Constitution, the Bill of Rights, and the 14^th Amendment were real lawyers with vast experience negotiating business and legislative documents, and they knew that their creation would have to continue to be useful well into a future they couldn’t possibly foresee.

            Every lawyer knows that it is impossible for to write a document that provides for every exigency.  And they also know that even trying to do so is a waste of time.  Smart lawyers don’t waste their time or their clients’ money arguing about things that aren’t likely to happen. Instead, Instead, they close deals by intentionally using “vague” or ambiguous language that gives all of their clients a leg to stand on if an unresolved issue does eventually arise.

            And so it is with the Constitution.  Words like “liberty” and “equality” are inherently relative and can only be understood in context.  Justice Scalia’s approach would have allowed local politicians in Southern states to maintain segregated schools and other public facilities until local politics forced a change. Justice Scalia’s approach would have allowed women to be denied full protection under the laws until they could outvote the men who wanted to maintain their own privileges.

            While the 14^th Amendment was adopted in the context of resolving the disputes that led to the Civil War, nothing in its language limits its reach to the newly emancipated slaves and their descendants nor to any particular kind of law.  It doesn’t say that henceforth, blacks and whites must be treated equally. It says that no person shall be denied due process nor the equal protection of the laws.

            The problem with Justice Scalia’s conception of constitutional interpretation is precisely what he accuses the majority of: it disrespects the intentions of the people who adopted the text being examined. He simply doesn’t give them credit for adopting constitutional provisions meant to stand the test of time.

Obergefell v. Hodges: Both Sides Get it Wrong

            On days like these I remember my years in law school.  “Divorce yourself from the policy. Focus on the logic of the law,” they’d tell us.  “Courts are not legislatures.  Courts are the servants of the democratic process.”

            After reading the 106 pages the Supreme Court’s majority and dissenters produced in this now landmark and overdue resolution of the same sex marriage question, I can’t help but wonder if the august lawyers who now sit on the high bench have forgotten everything they’ve learned.

            This was not a hard case, and it didn’t merit all of the heat that came off of the bench from all sides.  This was not the usurpation the dissenters bemoan.  And it also wasn’t the occasion for soaring declarations about liberty, freedom and human dignity that infuse the majority opinion.

            Instead, this was a case that required quiet logic and almost nothing new. The case asks about disparate treatment under law. It is a narrow question easily answered.

            Under standard equal protection clause analysis, the states are allowed to make distinctions between people and situations.  In most cases involving economic regulation that don’t involve distinctions based on morally irrelevant criteria such as race or religion, for example, states have wide discretion.  In one case famous in all law school constitutional law classes, the Supreme Court even sustained the use of nepotism in granting tugboat licenses as s reasonable means of promoting safety.

            But in cases that do involve distinctions based on morally irrelevant criteria, the Supreme Court applies a much more stringent test.  Under that test, if the state wants to use morally irrelevant criteria, the Court requires a damned good reason.  And no matter how much you struggle, there just isn’t one that permits a state to treat same sex couples differently from opposite sex couples.

            At best, states can make post hoc rationalizations about their treatment of same-sex couples.  The main one—encouraging the stable families for children—just doesn’t cut it.  States routinely give out marriage licenses to people who are no longer physically capable of reproducing. In any event, if that were the main reason, wouldn’t you expect states to test everyone applying for a marriage license to see if their union could produce offspring?

            Everyone knows why same sex marriage is not permitted in some states. For some people in those states, the thought of what might go on between two naked men or two naked women in a bed is just plain icky, and for centuries, those people have been holding the legislative pen.  But icky is not a reason for the state to deny benefits to people. 

            Gay people seek sexual partners of the same sex because they were born that way. For most people, sexual preferences are immutable psychological characteristics. The fact that gay people are attracted to people of the same sex and want to form families with them is as morally irrelevant to any conceivable state purpose as is the color of a person’s skin.

            The dissenters in this case are in high dudgeon because the majority failed to address this case on the easiest grounds.  The majority spent most of its energy discussing the case as a violation of due process and got itself caught up in discussions of fundamental rights and human dignity.  That gave the dissenters the ability to play the democracy card.  “Do we really want to entrust our constitutional order to the whim of nine lawyers from Harvard and Yale? Doesn’t our system of government entrust major policy questions to the ballot box?” they ask.

            In most cases, we do want majorities to decide major questions of public policy (such as, ahem, whether our government should insure that everyone has health insurance).  But to read the majority’s opinion, which relies on due process analysis and not equal protection analysis, does raise a legitimate concern about precedents allowing the Supreme Court to run amok as it did in Dred Scott and a number of cases that invalidated major New Deal legislation.

            Had the majority instead relied on equal protection analysis, the reply to the dissenters would be easy. We have always taken some issues out of the hands of democratic majorities because we simply can’t trust democratic majorities to be fair to unpopular minorities such as African-Americans, minority religious groups and homosexuals.  And that is precisely why we have a Supreme Court that operates beyond democratic control.

            There isn’t a way that our country will avoid a political backlash for this opinion.  To be fair, there isn’t a way that this case wouldn’t have produced a backlash, even if it had come out the other way. But we would all have been better off if the Court had presented us with a simple, logical, straightforward rationale couched in the most unemotional, apolitical language possible.

Raison D'Etre

In 1968, a year which rightfully claims a place as the great divide of our era, Garrett Hardin, a biologist, published The Tragedy of the Commons, an essay that has greatly influenced the way I think about the world. Indeed, I believe that if we fail to come to grips with the problem Hardin identified, we are virtually guaranteeing the decline of our country and peril for our descendants. I believe that The Tragedy of the Commons must be the starting point for any discussion of the future.

Hardin asked us to imagine a vast meadow suitable for grazing cattle. Upon reaching the meadow, what, he asked, would a rational cattleman to do? Following his own self-interest, the cattleman would increase the size of his herd. If the meadow is vast, the cattleman reasons that adding to his herd increases his own profit without adding cost, at least as far as the meadow is concerned. If he overgrazes his cattle in one part of the meadow, he simply moves to another part of the meadow, allowing the overgrazed part to regenerate.

What happens if more cattlemen discover the meadow? They make the same calculation as the original cattleman did. Adding to the herd makes individual sense, regardless of its effect of the meadow. Soon, the cattlemen, thinking selfishly, have reached the limit of the meadow's ability to support all of the herds, overgrazing occurs, and the meadow "dies" in the sense that it can no longer support the herds of cattle that have come to graze on it.

As Hardin points out, this "tragedy of the commons" raises a challenge to Adam Smith's notion that an individual who "intends only his own gain," is, “led by an invisible hand to promote…the public interest." In a "tragedy of the commons" scenario, each actor has complete freedom to use the commons as he or she wishes; he or she takes all of the profit, but distributes the cost to others.

Of course, it matters how "vast" the commons is in order to assess whether an action or inaction will lead to tragedy. "A hundred and fifty years ago," Hardin argued "a plainsman could kill an American bison, cut out only the tongue for his dinner, and discard the rest of the animal. He was not in any important sense being wasteful. Today, with only a few thousand bison left, we would be appalled at such behavior." In earlier ages, when the human population was small and its impact on the natural world insignificant, the possibility of tragedy was remote. Today, we live on a world with 6 billion other people, each, morally, at least, having an equal claim to the planetary commons, and it is no longer possible for anyone to move off the commons for greener pastures, as our lone cattleman could have.

One way of addressing the tragedy of the commons is to make an appeal to the reason or the conscience of the resource users and insist that they take voluntary action to avert the tragedy. Hardin argued, though, that this tack is likely to be ineffective for two reasons. First, a person who voluntarily complies with a conscience-oriented appeal merely frees up resources for the others who don't or won't comply. Second, because these "ethical" people will be at a disadvantage, in the short run, evolution will make those who maximize the use of the resource stronger than those who don't, and, eventually, "ethical" people will be "bred out" of the system.

Citing Hegel's observation that "freedom is the recognition of necessity," Hardin concluded that the only way to avert the tragedy of the commons was to institute a system of coercion that has been "mutually agreed upon by the majority of the people affected." Hardin's language is sufficiently vague on the matter of who would actually be responsible for applying this coercion and how this coercion would be applied. This vagueness leaves space for liberals to argue that averting the tragedy of the commons is the function of government while leaving it to conservatives and libertarians to argue that private associations will form naturally to administer each resource. Regardless of whether the liberals prevail or the conservatives/libertarians do, the result is the same: only groups capable of limiting the freedom of individuals by democratic means can preserve the commons for all.

I am squarely in the camp of the liberals. For me, while Hardin's commons is a sublime metaphor, it doesn't capture the complexity and interdependence of the world in which we now live. The global commons is far too big to be managed locally. In prior decades, we could talk about the water quality in a particular town or the smog in a particular city. We could form ourselves into groups intent on "saving the baby seals" or "protecting the Chesapeake Bay," and devote our energy to those causes. But the baby seals and the Chesapeake Bary are all part of a huge and vastly complex interacting system. Actions taken with respect to the Chesapeake Bay may well have some impact on the baby seals in the arctic, and we cannot leave it to these two groups to worry about that interaction, because if they are working independently on their causes, they may be unwittingly working at cross-purposes.

I believe that only a powerful government can tap the financial, intellectual, technical and coercive resources necessary to coordinate and address all of these problems simultaneously. Our challenge as citizens is to keep our government on task while keeping its functions as transparent and as accessible as possible without concentrating tyrannical powers in its hands. Given the damage both parties have done (and continue to do) to our system of governance, this will be no mean feat.

I will be writing periodically about the world as I see it, always informed by Hardin's insight about the tragedy of the commons. I hope that anyone who reads this will take time to think deeply about the issues I raise and find ways to act. We are quickly approaching the point where our global commons will face tragedy. Help me make sure that there is something left for our children.

All images courtesy of Freefoto.com