What Happens When Dissent Isn’t Consistent?
After a weekend where I saw my brother successfully defend his dissertation in Washington DC, and saw two great people and friends get married on the Jersey Shore, I finally managed to read Justices Roberts’ and Scalia’s dissents in Obergefell. Needless to say that my interest was buoyed by my giddiness of the decision.
Justices Roberts and Scalia both complain that Justice Kennedy is “pretentious” (i.e., ‘marked by an extravagant or presumptuous outward show; ostentatious”). This is laughable. Justice Scalia’s dissents in gay-rights cases have begun by misusing the word “Kulturkampf” (i.e., if the Colorado law is a Kulturkampf, as he says in Romer v. Evans, then obviously it violates Equal Protection). Then in Windsor v. United States, he suggested that the majority opinion treated anti-gay legislators as “hostes humani generis” and in Obergefell v. Hodges he describes the Court’s ruling as a “Putsch.” Both of these are, “generously, overwrought, and more accurately, pretty darn offensive and historically inaccurate” as a friend of mine keenly pointed out. In other words, those in glass houses should not throw stones.
The substance of their dissent argues in favor of judicial restraint. Indeed, that’s almost the sum-total of their argument. But these Justices struck down the preclearance provision of the voting rights act in Shelby County v. Holder, integration programs in Parents Involved In Community Schools v. Seattle School District No. 1, firearms restrictions in District of Columbia v. Heller, and certain campaign finance restrictions in Citizens United v. Federal Election Commission, as well as other validly promulgated laws. Where was the judicial restraint there?
Perhaps the justices have a compelling legal argument in favor of upholding discrimination against homosexuals, or that the judiciary should not intervene on behalf of minorities that have faced historical persecution and instead should intervene on behalf of interests that are over-represented in our political system. But they haven’t provided that argument yet, and their dissents ring hollow as a result. For all of the talk of the court being politicized or corrupted by judicial activism, I don’t think these conservative justices have done anything to dispel this perception in this dissent.