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.