What does it mean when Justice Scalia loses it?

June 27, 2013: 1:52 PM ET

The indefensibility of the Defense of Marriage Act lays bare the unworkability of the justice's judicial philosophy. Why Scalia doth protest too much.

By Roger Parloff, senior editor

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FORTUNE -- History will say that the federal Defense of Marriage Act was struck down by a 5-4 vote of the U.S. Supreme Court. But those who read the landmark, gay-rights ruling might see it as more of a 5-3-1 vote.

Five justices joined the majority, three justices dissented, and one justice came unhinged.

The latter, Justice Antonin Scalia, accused the majority of resorting to "legalistic argle-bargle" in its "high-handed invalidation of a presumptively valid statute;" of envisioning itself as "standing (or rather enthroned) at the apex of government" where it aspired to "black-robed supremacy;" of "pawning" the Court's constitutional legitimacy "to buy its stolen moment in the spotlight;" and of trying to intimidate dissenters by presenting them with a "Hate your neighbor or come along with us" ultimatum. He concludes, with no apparent self-awareness, "It is hard to admit that one's political opponents are not monsters."

Indeed.

Scalia's self-investiture in the bromides of judicial restraint, portraying himself as the humble servant of the democratically elected branches of government, fell particularly flat this time around, coming as they did just one day after he joined the majority that struck down, by another 5-4 vote, the linchpin provision of the Voting Rights Act of 1965, legislation repassed just seven years ago by a nearly unanimous Congress. In that instance, Shelby County v. Holder, Justice Scalia had actually suggested at oral argument last November that the more lopsided the margin by which an Act of Congress passes, the more suspect it becomes.

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"Not a single vote in the Senate against it," Justice remarked then about the Voting Rights Act, articulating one of the reasons he saw a need to kill it. "And the House pretty much the same. I think it is … very likely attributable to a phenomenon that is called perpetuation of racial entitlement. It's been written about ... I don't think there is anything to be gained by any senator to vote against continuation of this act … They are going to lose votes if they do."

Scalia's dissent yesterday was one of his "bomb-throwing" opinions, as they are now known in legal academia, for they are a recognized genre. See, for instance, New York Times op-ed columnist and Yale Law School instructor Linda Greenhouse's discussion of them here.

Scalia's judicial tantrums are not triggered by mere disappointment with a result. (But see Andy Borowitz.) They reflect something deeper. They reflect frustration with cases that confront Scalia with the fundamental unworkability of his judicial philosophy.

Scalia says he believes that the words of the Constitution must be interpreted in accordance with their "original meaning" -- that is, the objective meaning that they would have had to a reasonably well-informed member of the public at the time of its enactment. He rejects alternative theories of constitutional construction, known as "living constitutionalism," which allow justices to interpret the broadly worded constitutional principles -- like "equal protection," "due process," or "cruel and unusual punishment" -- in light of contemporary circumstances, mores and values. He views the latter approaches as too loosey-goosey, allowing unelected justices to impose their subjective and elitist policy preferences on the unwashed masses.

The key problem with his jurisprudence is that it cannot account for the most important constitutional rulings of our age, and the ones of which Americans are most proud.

Like Brown v. Board of Education, for instance. There, in 1954, the Court unanimously struck down, under the equal protection clause of the Fourteenth Amendment, de jure segregation in public schools. Yet it is highly unlikely that either the Congress that drafted the Fourteenth Amendment in 1866 or the electorate would have understood the equal protection clause to require such a result, since that same Congress made no attempt to dismantle the segregated school system that it had set up in the District of Columbia just four years earlier. On the contrary, Congress kept appropriating money to that segregated system until 1954. (I have discussed this challenge to Scalia's theory, as well as one originalist professor's attempt to find a retroactive workaround, here.)

Similarly, it's very hard, using Scalia's "original meaning jurisprudence," to account for why the equal protection clause should confer any protection upon women -- though Scalia accepts that it does -- who in 1868, couldn't vote or serve on juries, and whose property automatically became their husbands' upon marriage.

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The recent, breathtakingly rapid changes in American attitudes toward gay rights likewise challenge Scalia's jurisprudence to its core. When the "equal protection clause" was enacted, of course, at least 32 of 37 states considered consensual homosexual acts to be felonies; it's therefore very doubtful that the average American at that time thought the clause protected homosexuals.

In fact, as recently as 1986, Justice Byron White could and did famously write for a majority of the Court that the notion that the equal protection clause might extend protection to those who engage in homosexual acts was "at best facetious."

But our society changes with startling speed. Scalia himself has doubtless changed. Now that homosexuals are out in the open -- which was not the case in Justice White's time and milieu -- Scalia realizes all too well that he works with homosexuals, is related to some, and treasures his friendships with not a few. He does not relish having to cast himself -- as his jurisprudence requires -- as a defender of laws that, when all is said and done, were enacted to persecute these fellow citizens.

But this is what happens when a society's worldview spins on a dime, as ours has. Those who try to defend laws that once seemed so second-nature as to require no justification, suddenly find themselves tongue-tied when it comes to articulating any basis for them.

Other than, of course, bare animus -- i.e., ill-will toward those who are disadvantaged by the law. But constitutionally speaking, bare animus doesn't count as a "rational basis" for a law. More important, no one today -- not even those still defending the laws in question -- wants to admit feeling such animus anymore, and most of them truly don't feel any anymore. So they get offended when someone seems to tar them with that brush, which is what Scalia saw Justice Anthony Kennedy, writing for yesterday's majority, as doing.

And, yes, Kennedy did, in the end conclude, that DOMA "writes inequality into the entire United States Code," and that "its avowed purpose and practical effect ... are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages."

Nevertheless, in earlier passages of his opinion, Justice Kennedy also did the best job I have seen of trying to write a nonjudgmental explanation of how both the DOMA Act, and the state laws it tried to preempt, came into existence:

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.

Kennedy was vilifying no one. The problem was that, when push came to shove, no one could come up with a plausible explanation for the existence of DOMA other than animus toward same-sex couples.

Justice Scalia protested that there were "many perfectly valid -- indeed downright boring -- justifying rationales for such legislation." But he struggled to name just two, and each was pathetically feeble. The first was the claim that the law would head off the need to confront certain thorny "choice of law" issues that could arise when gay couples were married in one state, which recognized same-sex marriage, but lived in another, which didn't.

Give us a break. It's not called The Avoidance of Thorny Choice-of-law Issues Act. It's the Defense of Marriage Act. In any case, the corporations that were actually saddled with enforcing DOMA -- more than 200 of which filed an amicus brief opposing the law -- apparently saw few administrative advantages to it. In forcing their human resources departments to draw distinctions between identically situated married employees it was both a betrayal of their nondiscrimination policies and a bookkeeping nightmare, they argued.

The other reason Scalia offered was something he called "stabilizing prudence" -- a desire to prevent hundreds of federal statutes on the books, which had alluded in passing to "marriage" or "married couples" from now being applied in unforeseen circumstances. Again, are you kidding? You think that's what was drove enactment of this law? And isn't the argument circular anyway? If earlier Congresses were content to let states define "marriage" for the purposes of all these laws, what suddenly motivated the DOMA Congress to do a 180?

"The fact that Justice Scalia chose these two unconvincing rationales is reflective of the absence of a better one," Jenner & Block partner Paul Smith wrote yesterday in a Scotusblog.com commentary.

It's reflective of more than that, in fact. DOMA defenders' collective flight from even admitting what it was originally about shows how quickly and dramatically worldviews can change. When we can no longer say out loud what it was that motivated the law, maybe it's time to let it fall. And when we can no longer remember why we used to deny homosexuals equal protection, maybe it's time to include them.

Though some call it the living Constitution, it's not really the Constitution that's changing. It's just us. But Scalia's jurisprudence won't let him acknowledge the change. And it drives him nuts.

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