It is a great loss. Everybody has heard about Scalia's dissent in Obergefell vs. Hodges, in which the court discovered that marriage has nothing to do with sex. I had read a few quotes from the dissent, but not the whole thing until today. It's very much worth reading. Here is one powerful excerpt.
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.
And as someone who cares about writing I applauded this:
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.[22] Of course the opinion’s showy profundities are often profoundly incoherent.
I have to note that I saw this happening twenty-plus years ago and described it in an essay called "Nothing at the Center," which appeared in Caelum et Terra.
It is in many circles somewhere between bad manners and villainy to admit to having fixed beliefs on most moral and philosophical questions. Yet it is clear that the human mind requires such points of fixity, and so we find the most skeptical intellectuals placing the most naive trust in the judgment of the Supreme Court. It is not just that they acknowledge the fact that the Court has the last word; there is almost a sense that they believe that the Court’s decisions constitute what is right and true, at least for the moment.
To place such trust in these nine popes without a God would obviously be a mistake at any time, but now it is ridiculous. We find ourselves in the position of expecting to have the most serious moral questions answered by a group of lawyers selected by politicians, and we are getting the sort of answers that might be expected.
There is some irony in the fact that Scalia, a Catholic, did not argue for the normal and reasonable understanding of marriage, but only for the constitutional question of who is entitled to decide. I argued in my essay that the absence of any recognition of an agreed-upon moral framework may be the fatal weakness of the American system. As far as his work as a judge was concerned, Scalia accepted that. He makes no attempt to appeal to any higher law. It is in fact the justices who declared same-sex marriage a fundamental right who ignored the Constitution in favor of what they clearly believe, though they didn't use the term, to be a higher law, an unwritten law which can be invoked at the will of any five Supreme Court judges to nullify whatever laws happen to be written down, including the Constitution itself. Unwittingly they testify to the impossibility of escaping the necessity of fundamental moral judgments.
Here is Kevin Williamson at National Review making an argument similar to mine, even using similar language, but rather more forcefully:
The alternative [to Scalia's approach] is to make the Supreme Court a nine-person mob in a mob-rule society. We already are dangerously close to that point. No thinking person doubts that Ginsburg, Kagan, Sotomayor, and Breyer will find a way to produce the outcome that the Left desires in any important case. Kagan lied to the Senate about her thinking on the question of gay marriage in order to have the opportunity to enact that thinking from the highest court. Never mind that the Constitution does not actually say what they wish it said about gay marriage, abortion, gun ownership, or the fact that First Amendment protections go well beyond the editorial board of the New York Times: If the Left demands a constitutional right to late-term abortion manufactured out of whole cloth, or that the words “the right of the people” be magically transformed into “the National Guard” in the case of the Second Amendment, these so-called justices will deliver.
Actually I'd quibble a bit with that. It isn't mob rule that progressives want, it's the establishment of their own system of absolutes.
Well, I keep saying that American democracy is in decay, and that self-rule by the governed is becoming a hollow concept. The replacement of Scalia by someone of President Obama's choosing will certainly further the decay, though there is some hope that Republicans will make good on their currently stated intention not to confirm an Obama appointee. The efficacy of that, if it happens, will of course hold for only a year if the Republicans lose the presidential election, and quite possibly if they win.
And the opposition should not let the Democrats intimidate them into believing there is something wrong with refusing to confirm Obama's choice.
Light On Dark Water 
Leave a comment