WHAT EVERYONE IS TALKING ABOUT: Justice Antonin Scalia Repudiates a Lawless Supreme Court

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.

I join THE CHIEF JUSTICE’s opinion in full. I write separately
to call attention to this Court’s threat to American
democracy.

The substance of today’s decree is not of immense personal
importance to me. The law can recognize as marriage
whatever sexual attachments and living arrangements
it wishes, and can accord them favorable civil
consequences, from tax treatment to rights of inheritance.

Those civil consequences—and the public approval that
conferring the name of marriage evidences—can perhaps
have adverse social effects, but no more adverse than the
effects of many other controversial laws. So it is not of
special importance to me what the law says about marriage.
It is of overwhelming importance, however, who it
is that rules me. Today’s decree says that my Ruler, and
the Ruler of 320 million Americans coast-to-coast, is a
majority of the nine lawyers on the Supreme Court. The
opinion in these cases is the furthest extension in fact—
and the furthest extension one can even imagine—of the
Court’s claimed power to create “liberties” that the Constitution
and its Amendments neglect to mention. This
practice of constitutional revision by an unelected committee
of nine, always accompanied (as it is today) by extravagant
praise of liberty, robs the People of the most important
liberty they asserted in the Declaration of
Independence and won in the Revolution of 1776: the
freedom to govern themselves.

Until the courts put a stop to it, public debate over
same-sex marriage displayed American democracy at its
best. Individuals on both sides of the issue passionately,
but respectfully, attempted to persuade their fellow citizens
to accept their views. Americans considered the
arguments and put the question to a vote. The electorates
of 11 States, either directly or through their representatives,
chose to expand the traditional definition of marriage.
Many more decided not to. Win or lose, advocates
for both sides continued pressing their cases, secure in the
knowledge that an electoral loss can be negated by a later
electoral win. That is exactly how our system of govern-
ment is supposed to work.

The Constitution places some constraints on self-rule—
constraints adopted by the People themselves when they
ratified the Constitution and its Amendments. Forbidden
are laws “impairing the Obligation of Contracts,”3 denying
“Full Faith and Credit” to the “public Acts” of other
States,4 prohibiting the free exercise of religion,5 abridging
the freedom of speech,6 infringing the right to keep and
bear arms,7 authorizing unreasonable searches and seizures,8
and so forth. Aside from these limitations, those
powers “reserved to the States respectively, or to the
people”9 can be exercised as the States or the People desire.
These cases ask us to decide whether the Fourteenth
Amendment contains a limitation that requires the States
to license and recognize marriages between two people of
the same sex. Does it remove that issue from the political
process?

Of course not. It would be surprising to find a prescription
regarding marriage in the Federal Constitution since,
as the author of today’s opinion reminded us only two
years ago (in an opinion joined by the same Justices who
join him today):

“[R]egulation of domestic relations is an area that has
long been regarded as a virtually exclusive province of
the States.”

“[T]he Federal Government, through our history, has
deferred to state-law policy decisions with respect to
domestic relations.”

But we need not speculate. When the Fourteenth
Amendment was ratified in 1868, every State limited
marriage to one man and one woman, and no one doubted
the constitutionality of doing so. That resolves these
cases. When it comes to determining the meaning of a
vague constitutional provision—such as “due process of
law” or “equal protection of the laws”—it is unquestionable
that the People who ratified that provision did not understand
it to prohibit a practice that remained both universal
and uncontroversial in the years after ratification.

We have no basis for striking down a practice that is not
expressly prohibited by the Fourteenth Amendment’s text,
and that bears the endorsement of a long tradition of open,
widespread, and unchallenged use dating back to the
Amendment’s ratification. Since there is no doubt whatever
that the People never decided to prohibit the limitation
of marriage to opposite-sex couples, the public debate
over same-sex marriage must be allowed to continue.
But the Court ends this debate, in an opinion lacking
even a thin veneer of law. 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.

That is so because “[t]he generations that wrote and ratified
the Bill of Rights and the Fourteenth Amendment did
not presume to know the extent of freedom in all of its
dimensions . . . . ”. One would think that sentence would
continue: “. . . and therefore they provided for a means by
which the People could amend the Constitution,” or perhaps
“. . . and therefore they left the creation of additional
liberties, such as the freedom to marry someone of the
same sex, to the People, through the never-ending process
of legislation.” But no. What logically follows, in the
majority’s judge-empowering estimation, is: “and so they
entrusted to future generations a charter protecting the
right of all persons to enjoy liberty as we learn its meaning.”15
The “we,” needless to say, is the nine of us. “History
and tradition guide and discipline [our] inquiry but do
not set its outer boundaries.”16 Thus, rather than focusing
on the People’s understanding of “liberty”—at the time of
ratification or even today—the majority focuses on four
“principles and traditions” that, in the majority’s view,
prohibit States from defining marriage as an institution
consisting of one man and one woman.

This is a naked judicial claim to legislative—indeed,
super-legislative—power; a claim fundamentally at odds
with our system of government. Except as limited by a
constitutional prohibition agreed to by the People, the
States are free to adopt whatever laws they like, even
those that offend the esteemed Justices’ “reasoned judgment.”
A system of government that makes the People
subordinate to a committee of nine unelected lawyers does
not deserve to be called a democracy.
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
of America.

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 Southwesterner
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.

But what really astounds is the hubris reflected in
today’s judicial Putsch. The five Justices who compose
today’s majority are entirely comfortable concluding that
every State violated the Constitution for all of the 135
years between the Fourteenth Amendment’s ratification
and Massachusetts’ permitting of same-sex marriages in
2003. They have discovered in the Fourteenth Amendment
a “fundamental right” overlooked by every person
alive at the time of ratification, and almost everyone else
in the time since. They see what lesser legal minds—
minds like Thomas Cooley, John Marshall Harlan, Oliver
Wendell Holmes, Jr., Learned Hand, Louis Brandeis,
William Howard Taft, Benjamin Cardozo, Hugo Black,
Felix Frankfurter, Robert Jackson, and Henry Friendly—
could not. They are certain that the People ratified the
Fourteenth Amendment to bestow on them the power to
remove questions from the democratic process when that
is called for by their “reasoned judgment.” These Justices
know that limiting marriage to one man and one woman is
contrary to reason; they know that an institution as old as
government itself, and accepted by every nation in history
until 15 years ago, cannot possibly be supported by
anything other than ignorance or bigotry. And they are
willing to say that any citizen who does not agree with
that, who adheres to what was, until 15 years ago, the
unanimous judgment of all generations and all societies,
stands against the Constitution.

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. 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?) And we are told that,
“[i]n any particular case,” either the Equal Protection or
Due Process Clause “may be thought to capture the essence
of [a] right in a more accurate and comprehensive
way,” than the other, “even as the two Clauses may converge
in the identification and definition of the right.”

(What say? What possible “essence” does substantive due
process “capture” in an “accurate and comprehensive
way”? It stands for nothing whatever, except those freedoms
and entitlements that this Court really likes. And
the Equal Protection Clause, as employed today, identifies
nothing except a difference in treatment that this Court
really dislikes. Hardly a distillation of essence. If the
opinion is correct that the two clauses “converge in the
identification and definition of [a] right,” that is only
because the majority’s likes and dislikes are predictably
compatible.) I could go on. 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.

* * *

Hubris is sometimes defined as o’erweening pride; and
pride, we know, goeth before a fall. The Judiciary is the
“least dangerous” of the federal branches because it has
“neither Force nor Will, but merely judgment; and must
ultimately depend upon the aid of the executive arm” and
the States, “even for the efficacy of its judgments.”

With each decision of ours that takes from the People a
question properly left to them—with each decision that is
unabashedly based not on law, but on the “reasoned judgment”
of a bare majority of this Court—we move one step closer to
being reminded of our impotence.

[Footnote:] “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 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.