Wednesday, September 29, 2004

Scalia is Making (a Little) Sense

Though I usually don't agree with Justice Scalia, I do agree with much of what he said in a speech at the Kennedy School:

"What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society ... by judges," Scalia said on Tuesday during an appearance at Harvard University's Kennedy School of Government.

In some cases -- and in response to a question from the audience, he acknowledged Brown vs. Board of Education was one -- there is a societal benefit when a court rules against prevailing popular opinion, but generally speaking it is fundamentally bad for democracy, he said.

While Scalia never mentioned the gay marriage issue specifically, the Massachusetts Supreme Judicial Court has come under fire nationally for overstepping its authority on the issue.

That court ruled last year that gay couples constitutionally could not be denied marriage licenses; the decision paved the way for the nation's first state-sanctioned same-sex marriages.

"I believe in liberal democracy, which is a democracy that worries about the tyranny of the majority, but it is the majority itself that must draw the lines," Scalia said.

As an example, he cited the women's suffrage movement, which he said resulted from the will of the people, not a court.


In general, I think this is right and I would hope that Scalia keeps these thoughts in mind when he looks at takings and commerce clause cases. I also think it's generally true on a variety of social issues. The general rule should be to let the majority decide how it will govern itself. The only exceptions I would make are those laid out by Justice Stone in Carolene Products and later by Prof. John Hart Ely--political rights like freedom of speec, assembly, press, etc. that are necessary for the majority to arrived at a free and informed decision, and restrictions on "discrete and insular minorities," groups that historically have been unable to get a fair hearing from the majority because of prejudice or rank inequality. For example, the Court was right in Brown v. Board to strike down segregation laws against the wishes of the majority of citizens in those states. Why? Because those laws placed a terrible burden on blacks, a burden that they had no possible way of removing through normal majoritarian political channels.

Similarly, that's why Scalia's example of women's suffrage is exactly the wrong one. Without the right to vote, women had very little ability address a terrible inequality. As a result, the Court should have struck down male-only suffrage laws in the 1870s.

I have a harder time with Roe v. Wade. Women have clearly suffered discrimination, but unlike blacks at the time of Brown, women in the 1970s were not locked out of the political process. Also, positions on abortion cut across gender lines. Furthermore, the evidence shows that in many states, abortion rights advocates were successful in their quest to liberalize abortion laws. Gerry Rosenberg's book, Hollow Hope is particularly good on this topic. He points out that despite Roe v. Wade, the the trendline of the number of legal abortions did not change significantly after 1973. This suggests that the current state of abortion rights wouldn't be all that different if the Court hadn't acted and the issue was left to work its way through the majoritarian political process.

On the matter of gay marriage, I think this case is more comparable to Brown v. Board. Despite recent advances, gays are still discrete and insular majorities, and thus in needing of the Court's protection when it comes to securing their rights.

8 comments:

Anonymous said...

How do you square Scalia's comments with the 2000 election decision? The majority was attempting to draw the line and SCOTUS prevented it. Or am I missing something.

Keep up the good work,
fatbear

Palooka said...

Fatbear,

Yes, you're missing something. The Florida Supreme Court ignored the clear prescription of the statute. The Florida Supreme Court was deciding the outcome, in contravention to democratically adopted election statutes.

The equal protection claim, which the majority employed in Bush v. Gore, is flawed. That was a compromise to get the 5 votes necessary.

For some reason or another, Kennedy and O'Connor didn't sign on to the opinion illustrated in the Rehnquist concurrence (joined by Thomas and Scalia). It provides a strong rationale. The Constitution states that the legislature shall prescribe the method for how electors or appointed. While the Florida Supreme Court is granted great deference in interpreting the legislature's text, it cannot fundamentally abridge their authority. And that is exactly what the Florida Supreme Court did in the 2000 election. And in doing so, they violated the US Constitution. What the Supreme Court did is make sure that the democratic branch has control over election law, and that the rules are relatively clear before (not changing after the fact, as the Florida Supreme Court did).

Palooka said...

Klinker,

Your philosophy is diametrically opposed to Scalia's. While you grant some deference to democratic majorities, you have pretty much nullified the Constitution. Your philosophy is totally useless. Democracy should be respected, except when you feel it shouldn't be? Now, judicial decisions are inevitably subjective, but you have embraced a full-fledged subjective approach.

The criteria you have stated ("discrete and insular") has the appearance of reducing subjectivity, but that is a false perception. Your argue that Courts can mandate gay marriage because gays are "discrete and insular" minorities. That seems to be inapposite in the first place, because anybody knows homosexuality is celebrated today. Homosexuals enjoy considerable support (majority support in most regions, and maybe even nationally on certain issues), they are hardly isolated. Moreover, they enjoy considerable economic and political power.

Now, I assume you are not for court mandated polygamous and polyamorous "marriage equality." That's correct, right? Now, are polygamists and those engaged in group marriage more "discrete and insular" minorities than homosexuals? Yes, of course they are. Not only are they a much smaller population, but polygamy is still (and still can be) criminalized. Whereas, since Lawrence, homosexuals are free to practice whatever sexual lifestyle or living arrangement they like. Moreover, few would publically advocate court-mandated polygamous "marriage equality." So, which minority, polygamists or homosexuals, is more "discrete and insular?" It's clear, of course, that polygamists are more isolated, nearly universally despised, and their conduct is even criminalized. Now, according to your nonsense criteria of "discrete and insular" polygamists deserve their "marriage equality" before homosexuals.

Are you going to stand by that result and criteria?

Rothko said...

Holy, Jebus Palooka...did you and the other overweight 19 year olds in the conservative club just buy copies of the "The Idiot's Guide to Con Law" and "Bill O'Reilly's Talking Points Memo: Kids Edition"? Because you really make some killer arguments here.

Anyone who can defend the logic of Bush v. Gore exits on the same plane of rational thought as G. Gordon Liddy and my boy Hunter S. Thompson.

Keep chasing windmills my boy...

Palooka said...

Rothko,

Again you demonstrate your maturity and ability to debate so well. Keep up the good work.

Have you even read Bush v. Gore? Didn't think so. Heck, you probably didn't even read my post here (that'd take too much effort, wouldn't it?). The Florida Supreme Court abridged the legislature's constitutional authority to delineate election law. If you're serious about the subject, then read Richard Posner's book on the 2000 election, Breaking the Deadlock. Liberal icon Justice Brennan described Posner as a genius (one of the two smartest people he had ever met). Bill O'Reilly? Give me a fucking break, Rothko.

Don't open your ignorant trap if you can't hang. Ready to bring some subtance to the debate?

Rothko said...

Dawg...I'm hurt...I'm a brother in Pi Sigma Alpha...the National Political Science Honors society...I used to work for the man who coined the concept of homosexual marriage as being equivilant or at least comparable to polygamy and even beastiality (You know my man Rick Santorum right?)...Your droppin' a lot of hate...'bout a lot of sugar you don't know...but that's cool I was a little over the top with the whole overweight thing...

If you want a real debate than be honest with me...did you come to your conclusions about Bush v. Gore because a genius like Richard Posner said it was the right decision and provided you with a legal rationale...or because you like the outcome? Which came first, your pleasure with the decision and belief that it was right or was it only after reading the works of several different legal scholars that you came to the conclusion that the court had come to the only legally defensible conclusion?

I would suggest it was the former.

And the larger point is this: Both you and Klinkner suffer from the same affliction. Hypocrisy. You like the decisions you like because they fit your values and beliefs regardless of whether they are consistent with each other. Your intellectual exploration and Klinkner's nifty little devise of "insular minorities" are just tricks that help you come to grips with the inconsistencies you encounter on the road to ideological purity.

You're 100% right...I don't feel like signing up for the Weekly Standard's or the Nation's Book of the Month Club so we can debate which "intellectual" is right. I'd rather ask you to stand behind your values alone and strip away the academic pretension.

PS> please don't ever bring the homosexuality is to a polygamy...crap.. to a debate about gay marriage it's an insult to my stylist...he wanted me to pass that along...

Rothko said...

Dawg...I'm hurt...I'm a brother in Pi Sigma Alpha...the National Political Science Honors society...I used to work for the man who coined the concept of homosexual marriage as being equivilant or at least comparable to polygamy and even beastiality (You know my man Rick Santorum right?)...Your droppin' a lot of hate...'bout a lot of sugar you don't know...but that's cool I was a little over the top with the whole overweight thing...

If you want a real debate than be honest with me...did you come to your conclusions about Bush v. Gore because a genius like Richard Posner said it was the right decision and provided you with a legal rationale...or because you like the outcome? Which came first, your pleasure with the decision and belief that it was right or was it only after reading the works of several different legal scholars that you came to the conclusion that the court had come to the only legally defensible conclusion?

I would suggest it was the former.

And the larger point is this: Both you and Klinkner suffer from the same affliction. Hypocrisy. You like the decisions you like because they fit your values and beliefs regardless of whether they are consistent with each other. Your intellectual exploration and Klinkner's nifty little devise of "insular minorities" are just tricks that help you come to grips with the inconsistencies you encounter on the road to ideological purity.

You're 100% right...I don't feel like signing up for the Weekly Standard's or the Nation's Book of the Month Club so we can debate which "intellectual" is right. I'd rather ask you to stand behind your values alone and strip away the academic pretension.

PS> please don't ever bring the "homosexuality is to polygamy"...crap.. to a debate about gay marriage it's an insult to my stylist...he wanted me to pass that along...

Palooka said...

Rothko,

First, Posner is no partisan. He wrote a decision overturning a state partial birth abortion ban. A decision which I disagree vehemently, but it should demonstrate quite clearly Posner isn't a partisan.

I thought Bush v. Gore was OK before detailed exploration because of two reasons. It concluded an out of control situation. And the Florida Supreme Court was really out of bounds in their interpretation. I did not know, then, however if there was a federal question involved. So, I was open to persuasion. The fact is Bush v. Gore is a solid decision, though the majority decision based on an equal protection clause is weak. The concurrence of Rehnquist is fairly unassailable. Read it. Think about it. Educate yourself, and then come back here ready to debate. Just visit my blog, and we can debate the issue when you form an informed opinion.

It's amusing that in the same breath you would accuse some one of bigotry and intolerance and yet also spout intolerance. Why is it insulting to be compared to polygamist? Why is that morally wrong? The entire premise of Lawrence and Goodridge and other similar decisions is that societal moral disapproval is inadequate for criminalization or unequal treatment.

I may personally feel that homosexuality is moral and polygamy immoral (fairly close to my actual feelings), but I do not see a legal principle which differentiates good moraility from bad morality. Morality is a legitimate basis of law, or it is not. Which is it?

So, instead of feigning offense, please answer the question. If polygamists can be denied "marriage equality," then why can't homosexuals?