Thursday, June 26, 2003
Dissenting Justices say the darndest things.
I suppose there's no point in my inviting Justice Scalia over to see the season finale of Queer as Folk on Tivo with us ...
But seriously, he certainly does let his outrage get the better of him, doesn't he? Sometimes dissenting Judges and Justices like to describe majority opinions in broad and outraged tones, predicting broad negative consequences from the majority holdings, or otherwise saying "well, extrapolating logically from the majority opinion, it means such-and-such a thing that I find even more horrific still." But they should be careful about it, unless they just enjoy taking part in culture wars more than they enjoy taking part in the development of the law.
You might think that Justice Scalia would have been reminded about the benefit of holding your tongue, when he saw that Justice O'Connor's concurring opinion in Lawrence used one of his old fiery dissents against him. He had dissented snarkily in Romer, in which the Court struck down an anti-gay referendum as discriminatory; Justice Scalia said, more or less, "you want an anti-gay law? I'll show you one: an anti-sodomy law! How can you get more anti-gay than that?!" He thought that somehow this would make people agree with him; but what it ended up doing, was giving Justice O'Connor something nice to cite as a reason to strike down the anti-sodomy law on equal protection grounds.
So did Justice Scalia, upon seeing Justice O'Connor's draft, think to himself, "gee, I should be careful not to shoot myself in the foot again, no matter how angry I get"? Nope. Instead, his dissent (see especially Part IV) affirmatively argues that, under the Court's reasoning, every law that is based on nothing more than the majority's sense of morality and propriety is unconstitutional. Well, that's fine with me. And indeed he goes out of his way to hint that one of the laws that will fall next, under the binding force of the Lawrence decision, is Alabama's silly law against vibrators. Again, fine with me. I love it when Justice Scalia's anger gets the better of him.
posted by sam 3:14 PM