fiddling

Coverage the recent case on the Defense of Marriage Act, United States v. Windsor, has almost universally omitted the fact that the case was not a contested issue; rather, the Supreme Court elected, by fiat, to decide to give its opinion on the case, anyhow.

Similarly, coverage of Justice Antonin Scalia’s dissent has focused on his caustic remarks regarding the majority opinion that any opposition to gay marriage could only be grounded in a mean spirit, hoping to portray the objection to the case as something like a bigot complaining that he is being called a bigot. How witty! However, the bulk of Scalia’s dissent is devoted to the novelty of SCOTUS’s decision to bring the case before it without any legal grounding for doing so. Forgive the long excerpt, but this is the core of this element of his dissent, abbreviated a little (all emphases in the original):

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

…Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossiter ed. 1961) (J. Madison). The people did this to protect themselves. They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. …

For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’” Ante, at 12. We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” ibid., giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit. See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. …

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, freestanding role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. …

I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.

Now, I’m not disinclined to affirm with persons like Eric Posner that SCOTUS is a body in which justices use legal reasoning for their preferred political ends. Justices rarely, if ever, agree to uphold or overturn decisions that they do not agree with, rather than ruling simply on the basis of their being judicially licit. Just because right–wing and left–wing justices do not always agree with each other (notice Scalia’s dissent in the Indian adoption case that was largely joined by Justice Sonia Sotomayor) does not mean that they have, in that moment, suspended their normal political preferences. While it might appear that Scalia has done so in upholding a special racial preference, there are plenty on the right who are comfortable (or even more enthusiastically in favor) in allowing special rights for Indians, but only Indians*.

Despite all this, what I quote above still matters. A precedent for SCOTUS to bring issues to its attention that would not otherwise have been is hardly one that those celebrating the decision should be OK with. What if, let’s say, another justice (Sotomayor?) joined the four conservative judges in overturning Roe on a case that had been settled in a district court? Or if, later, some successor law to DOMA or some state plebiscite on the issue is used as a precedent to overturn the current decision?

There is no doubt that the cultural–left in the current White House refrained from encouraging SCOTUS to bring this case on up in spite of its decided state. That’s what the left has devolved to in America, and one pines for Actually Existing Communism in a way. In fact, insanity like this would never have found a home in the USSR. While the Soviet state would ideologically criticize the great works of Western Civilization, it rarely totally blanked them; in fact, it is odd that more persons do not reflect upon the fact that, throughout the Cold War, the Russians were far better at promoting and preserving a number of traditional arts— why do Russian ballet companies stand forth, so many years after the Czars, as the pinnacle of the art?

This whole thing feels surreal.

It is the lack of historical context—as if there were a hiatus in history—that also stands out. The other important section of Scalia’s dissent focuses on just that. Formerly, the left saw itself as part of history— maybe it was bringing about its desired end, but the history was not obliterated in a new narrative which only saw the dialectic of Oppressed and Oppressor in the most abstract of senses. (This is not the Bolshevik ‘Who, Whom?’, even if it may be in continuation with it— a great–nephew or grandson.) For a number of reasons, those for whom their homoerotic proclivities double as their identities have become the new favored class; no more proof is needed other than the fact that the left’s thrill for Windsor eclipsed the prior day’s decision about the Voting Rights Act, a disappearing of black Americans that would have been hard to imagine even ten years ago. As I remarked in an off–blog reply to Owen White on this post of his, it’s ‘Because gay people who didn’t play sports have commentator and production roles in TV, duh.’

In that same reply, I remarked how the >115 IQ set that is most enthusiastic about gay marriage has not considered how it is easy for them to accept evolutionary novel behaviors† & ideas, but not for those on the left hand of the bell curve. But, I may have been foolish in saying that; as long as Americans watch a lot of TV (and more and more, the gap in TV consumption widens between the smart and the not–so–smart) and TV continues its push for both gay marriage and the increasing portrayals of gay couples, they will perhaps be just as easily swayed. Notice the divergence in how white Americans perceive black Americans based on whether or not their primary images of them come from TV or their daily lives; permanently coupling gay persons are a much smaller proportion of the American population than blacks, and far less visible. The comparison is imperfect, however, because actual proximity increases acceptance, anyhow, except perhaps for a wedge (like two gay men I’ve known).

However, I think I’m broadly right in believing that support for gay marriage will dry up.

In the end, it will be because such hedonist issues—and juvenile ones like the incessant demands regarding ‘identity’—will become exceedingly unimportant as really–real problems become again a part of the lives of Americans. We’re merrily skipping to an an economic Ragnarök** that will not be slowed by our virtuous pursuit of justice in the cause of gay marriage.

Well, it was a fun way to blow time while we waited.

* There is a smaller group who are also in favor of some considerations for African–Americans on the argument that they are the group of historically–harmed peoples in America, but there is no ‘special relationship’ of the same kind between the white American majority and other peoples who have come here voluntarily, since. The ability of foreign African students to capitalize on racial preferences for the descendants of slaves is a particularly bitter pill.

† Make no mistake about it: The current commonality of adult–adult male homosexuality is highly novel, and long term relationships are even more so. The appeal that is often made to Greek precedent on homosexuality is always amusing considering the withering words the Greeks had for those erotic pairings who kept it up after the beloved entered adulthood.

** A much more apt comparison than the too–typical Armageddon. It’s the Twilight of the Gods, not the End.

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1 Comment

Filed under politics & economics

One response to “fiddling

  1. I’ll add a bit to what I wrote above regarding the political nature of the court. Not only does it not bother me, but it’s kind of the point of common law. Now, common law works only in hand with a respect for precedent & tradition, but there’s no way to derive from it a purely procedural methodology; common law is about the exercise of practical wisdom, which is why a jury of your peers once meant something quite different— or why the practice of jury nullification matters in a deeper sense than libertarians advocating it to get defendants off on minor drug charges.

    Man is unavoidably political; it’s part of our life. There are things which can and should be separated out from the political, but any sort of legal system is the political in action, and the idea that it can or should be anything else is absurd. While I would appreciate more fidelity to precedent than perhaps is common, that’s exactly due to my conservative political instincts.

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