Sunday, June 28, 2015

Why Justice Scalia Is Both Right And Wrong

America's 9 philosopher kings
While I endorse the result I'm a bit dubious about the method. Ireland did it the right way. In Ireland gay marriage became the law of the land because, after an intense campaign and many debates, an overwhelming majority of the Irish population voted to legalise gay marriage. America got gay marriage legalised in all fifty states because one man, Justice Anthony Kennedy, decided that gay marriage was going to be the law of the land. The US Supreme Court has four liberal judges and four conservative judges, Justice Kennedy is the swing vote and so what he says goes in cases like this. The judgement in the gay marriage case Obergefell v Hodges (2015) is worth reading in full, here. Kennedy's argument essentially came down to the equal protection clause of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Kennedy based his judgement on the unanimous decision in the famous Loving v Virginia case which held that laws prohibiting inter-racial marriage were illegal because they violate the 14th Amendment. Kennedy's logic is that if the equal protection clause applies to Loving it also applies to Obergefell. Kennedy was joined in this decision by the court's 4 liberal justices. 
In a blistering, sarcastic and rather undignified dissent Justice Scalia assailed Kennedy's reasoning, prose style and the decision itself. Scalia was both right and wrong in his dissent but crucially more wrong than right. Scalia I feel is right to say that this kind of important moral decision should have been made by a vote of the people or by their elected representatives rather than by one man, Justice Anthony Kennedy. If three or four weeks ago when this case was being written Kennedy had decided to concur with the conservatives this would have been a 5:4 decision the other way. That's no way to decide a major moral issue. One man makes a judgement call over his breakfast and that's that? But Scalia is more wrong than right and his reasoning in Obergefell is both disingenuous and philosophically dubious. Here's why Scalia is wrong: 

1. Scalia claims not to care one whit either way whether gay marriage should become the law or not, he's just an impartial justice applying the law. This is utter rubbish. Scalia, a committed Catholic, was frothing with hostility about gay marriage during oral argument and has almost always taken a conservative Catholic stance towards moral questions. 
2. Scalia says that discovering the right to gay marriage in the 14th Amendment means that 150 years of case law is wrong as the orginal writers of the 14th Amendment could never have envisaged such a right. They could never have envisaged television either but in Citizens United Scalia said that political candidates and PACs could spend as much money as they wanted on TV ads. Similarly with assault rifles, drones etc. With Scalia if the Constitution is in tune with his personal views the intent of the framers is clear, if it's not "special scrutiny" is required. 
3. Orginalism is incoherent as an interpretive school of thought. Scalia believes that the way to interpret the Constitution is to discover the original intent of the framers and ratifiers. This seems logical until you think about. Hundreds of people had a hand in drafting and ratifying the Constitution. Does it really make sense to go through all their speeches and diaries and private letters to understand what they really meant? If we are to turn the clock back to the 1780s or the 1860s then that means Brown v Board of Education (1954) was wrongly decided and "separate but equal" and Jim Crow should still be the law of the land. If this is what Scalia believes he should come and say so, but of course he and the other originalists would never say such a thing because originalism doesn't make sense in 1954 or 2015. The constitution is a living document that has been modified by case law - that's how the common law works. The late Ronald Dworkin's fascinating book Law's Empire unpacks how judges should interpret the constitution and is a must read for everyone interested in jurisprudence. Dworkin has unpacked the incoherence of Scalia's interpretive school, here.
4. Loving v Virginia is the key to everything and this clock started ticking way back in 1967. To me the most compelling part of Kennedy's judgement isn't his appeals to Cicero or Confucius (!) it's his analysis of Loving

The Court has long held the right to marry is protected by the Constitution. In Loving v. Virginia, 388 U. S. 1, 12 (1967), which invalidated bans on interracial unions, a unanimous Court held marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” 

The Loving case was decided in 1967 not 150 years ago by a unanimous court. Scalia, Roberts, Alito and Thomas (who takes the trouble to analyse Magna Carta (1215) in his dissent!) fail to explain why the Loving case was wrongly decided. If you believe, as all 9 SC judges clearly do, that Loving was correctly decided then you need to explain why Obergefell is substantially different from Loving. You don't need to go back to 1215 or 1865 or the 1780's. To me Kennedy's argument that the 14th Amendment covers gay couples is an understandable and compelling application of the Loving judgement and the judgment of the Court of Appeals for the Sixth Circuit should be reversed. This is not how I would have changed the gay marriage law in America but it is a logical application of the equal protection clause and the court made the right decision in this case. 
As I say, everyone who is interested in this case should read the full judgement, here. Unlike the SC cases of just 20 years ago the opinions have been written in a fairly easy to understand almost colloquial style. Kennedy's rhetoric is a bit over the top for my taste, CJ Roberts hits the right note in his dissent, Scalia is ill mannered but entertaining in his dissent and Thomas, as usual, is all over the shop. Thomas never speaks in oral argument and when you read his judgements you can sort of see why.