anotherlongshot (anotherlongshot) wrote,

Justice Scalia is my favourite funny judge.

I had a great time entertaining myself by reading Justice Scalia's trademark scathing dissenting opinion in Obergefell v. Hodges. He hasn't lost his comedic, sarcastic touch, and even though I hardly ever agree with him, I love the way he pours scorn all over the majority opinion with which he so obviously disagrees.

Here are some choice quotes:

1. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

2. The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.

3. [In a footnote to the above] If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. (This one is probably my favourite!)

4. Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)...

5. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

I haven't read the majority opinion, and I have a summary of the dissents in an article going around Facebook. I was going to write a bit about my thoughts on the dissents but I am a bit too tired from my very rigorous swimming session (it was definitely necessary, and although it was tiring as hell, I felt really free for thirty minutes) to properly form thoughts. As such, I will comment on Justice Scalia's dissent - more specifically, his insistence that only the "People" can decide what rights the Constitution contains.

While I understand that he's an originalist, in the first place, the idea of originalism is rather absurd - if the Constitution exists to protect the rights of the people, shouldn't the scope of these rights necessarily change with the time? At the time the US Constitution was signed/declared/enacted, it was legal to own slaves. That surely cannot be justified in any way, shape of form, not just in today's society, but ever - and if the originalism theory of the Constitution is to be believed, then it means that the Constitution does not recognise the rights of black Americans to equality, due process, and so on, because these rights did not exist at the time the US Constitution came into existence. Of course, I readily admit that my understanding of originalism is rudimentary at best, but as a prima facie matter, I find the theory pretty unconvincing.

Second, as much as I understand how important democracy is as a political concept in the US, I think it's necessary every now and then to take a step back and properly examine the concept of democracy, including its pitfalls. Democracy, basely understood, is majority rules. When majority rules, there is always a minority that loses out. This basic premise is obvious, and so I won't elaborate. Justice Scalia invokes the power of "the People" to argue against an unelected body of 5 judges creating a new constitutional right; these 5 judges effectively short-circuited the democratic process and overruled the will of the "the People".

That is all well and good, but what happens when the will of "the People" causes disadvantages to a minority, but significant, portion of the population? What happens when "the People" legislates based not on reason, but on prejudice and bigotry? While it is a nice populist ideal to say that 5 privileged, Harvard/Yale graduate judges cannot profess to dictate to the masses what is or is not bigotry, I would like to hear a reasoned argument against same sex marriage that isn't fundamentally steeped in bigotry. In fact, there isn't a single argument against same sex marriage that can even hold itself out to be coherent, rational and objective.

When the arguments proferred to deny equal treatment to a significant part of the population fail, perhaps it is up to the democratic processes to correct the wrongs. But what if it doesn't happen? What if it happens too slowly? How long did it take for desegregation to take place in the US, and even then, that was on the behest of a Supreme Court ruling; if the US had a massively different constitutional framework, how much longer would it have taken?

The point is, I still believe in the role of the court as the primary protector of fundamental rights. It is meant to be insulated from the political processes, and because it is independent and impartial, it is more well-placed to come to the right decision.

Of course, I am aware that my rosy view of the court is as self-servicing as Justice Scalia's view of "the People", and there are probably at least 5 holes that one could poke in what I just wrote. Forgive me though; I am tired right now and I am writing off the top of my head. Still, I think that the democratic process is overrated. While the courts don't always get it right (just look at the Singapore Court of Appeal for a good example of this), when they do get it right, they do justice to the fundamental importance of human rights.
Tags: current affairs, human rights, law, philosophy

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