I left this as a reply at another website on the Scalia business. I thought I’d re-post it here for commentary.
I find that I am not interested in WHAT people have to say about their opinions, but HOW they achieved them. This is especially true for the jazz following Mr. Justice Scalia’s demise.
I am actually hopeful about the Supreme Court remaining the least cynical organ of the Government, although it is being shoved into obsolescence by the tyranny of bureaucracy.
Coincidentally, I had been picking through Obergefell v. Hodges, the gay-marriage decision, over the last few weeks. (Summary and discussion of Obergefell here). I am not sure at all of whether I agree with the opinion. I did agree with Goodridge v. Comm. &c, the Massachusetts question on gay marriage, decided November 18, 2003, which raised points that have yet to be answered in our country. Here’s a link to Goodridge – I encourage folks to look at it some.
Goodridge asserted that since marriage in Massachusetts predated the US, even predated the settlement of North America, a government’s duty is simply to record the marriage contract, and exclude from marriage those who are incompetent to contract by virtue of age, dementia etc. That is a worthy statement. It’s a pretty stout libertarian principle.
But it also dooms the identification of marriage as a recognized criterion for discrimination in our laws. If marriage is no more than a private contract, why can plural marriage not be legal? Sibling marriage? There is nothing in answered in our case law since Goodridge to exclude these possibilities, nor did Obergefell offer any. Implicitly, any State recognition of marriage as a desirable entity is suspect, from taxation matters that favor or disfavor marriage, or any such thing.
The dissenters fell all over themselves to dissent. Chief Justice Roberts filed a dissenting opinion, in which Justices Scalia and Thomas joined. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined. Justice Alito filed a dissenting opinion, in which Justices Scalia and Thomas joined. That’s like fouling off a dozen pitches before striking out.
Roberts tried to light up a cigar, which turned out to be an exploding cigar. He tried to rattle the scary Lochner-era substantive due process boogyman, a terror to liberals everywhere, and suggest that Obergefell was a child of Lochner in its “arbitrariness.” But the much-derided Lochner era involved the pre-eminence of private contract over Government interference, and marriage is just such a private contract with public significance. So, yes, John, but not the way you think – Goodridge is a child of Lochner, and it expresses textbook conservative theory. Kabang!
I’m digging through Scalia‘s contempt-drenched dissent. He seemed to enjoy being obnoxious, although he was smart and often correct.
But people seem to enjoy living in worlds of pseudo-thought, and the pretense is that the USSC is a slam-bang world of pure politics, not realizing that Scalia may well have encouraged the nomination of Kagan to the Court; and that he and Ginsburg were well-known chums. Naming a “Librel” or “Conservative” to the Court typifies only the childishness and small-mindedness of the American public.
I recommend that Obama quietly offer it to Hillary Clinton if she drops out of the race. There. How’s that for a poison-pill for the electorate to swallow?