Supreme Court Justice Antonin Scalia’s blistering dissent in yesterday’s decision legalizing gay marriage across all 50 states would have been extraordinary were it not for how characteristic and “ordinary” it has been of him through his 29-year tenure on the bench. Over a long litany of opinions, Scalia seems to be repeatedly furious and affronted that his colleagues on the court may think differently and come to different conclusions than him about the great matters before them.
Although Scalia’s response, a few highlights of which I will note below, is no doubt rooted in particular aspects of his personality, what is perhaps more troubling is how his anger and disdain for those who dare to disagree with him seems reflective of our broader political and social culture.
Is it just me, or do we seem to live in extraordinarily angry and disdainful times?
Granted, democracy is and always has been messy. Autocracies, of course, are messy in a whole different way, so let us agree that our often cantankerous democracy is preferable to the low hum of regimes where dissent is limited to hushed whispers when citizens are reasonably certain there are no hidden microphones or secret government informants within earshot.
And let us note as well that the very creation of our nation and its hallowed Constitution was the subject of protracted and heated debate by our Founders, not all of whom got on as back-slapping drinking buddies. Our much revered second President John Adams had this to say about our equally revered Benjamin Franklin:
“His whole life has been one continued insult to good manners and to decency.”
And about his predecessor George Washington:
“That Washington is not a scholar is certain. That he is too illiterate, unlearned, unread for his station is equally beyond dispute.”
Also: not long after the founding of our nation, one of its chief architects, Alexander Hamilton, was killed in a culturally and legally sanctioned “duel” with his nemesis, the sitting Vice-President Aaron Burr. So we can be happy, I suppose, that Justice Scalia seeks to injure his colleagues by scornful rhetoric alone, rather than calling for them to take up muskets and walk toward each other from 10 paces.
Still: observing the overheated rhetoric that just this past week accompanied debates about the nature and proper role of the Confederate flag, the continuation of the Affordable Care Act, and the gay marriage issue, one wonders whether we are doomed to lurch forward interminably through angry words that attack the very intelligence, integrity and human decency of our opponents.
And whether the tone of such rhetoric may help set a tinderbox under unbalanced individuals who decide to ride the great surges of anger percolating through the body politic and do something heroic in its cause—such as murdering nine defenseless and welcoming people in a church.
In this regard—the cause of encouraging civil, respectful debate and reasoned analysis in which no party claims to be in sole possession of absolute truth—might we look to distinguished jurists wearing black robes and charged with interpreting the most sacrosanct, life-affirming document of our land?
Sadly, we had best not look for that kind of perspective from Justice Scalia. A few choice selections from his nine-page tirade against the gay marriage decision as written by Justice Anthony Kennedy:
“…The Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
“Mummeries?” “Straining-to-be-memorable passages?”
Scalia is here calling Kennedy’s thinking in his majority opinion “absurd, false, ostentatious” (the definition of “mummery”) and his writing style as pretentious. It’s almost a schoolyard taunt, looking to injure and dismiss rather than disagree. And then he gets even more scathing:
“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. Of course the opinion’s showy profundities are often profoundly incoherent.”
“Pretentious…egotistic.” (Pot calling the kettle black there?) “Silly extravagances..” “Showy profundities…profoundly incoherent.”
This is debate? Among legislators, where such verbal rows have a long if not necessarily illustrious history, we have come to expect such biting rhetoric, but need we be subjected to the same from black-robed jurists on the highest court in the land, where we are instructed to observe institutional decorum and verbal rituals such as referring to them as “Your Honor,” and of requesting, “If it please the court…”?
Scalia expects such decorum from all those appearing before the court, but then fails to grant the same to his colleagues. He instead engages in verbal lacerations that attempt to debase and even humiliate them. But he undermines his own arguments and integrity with the slashing, dismissive style that has become his hallmark. Listen to where he goes from the above statement, as he first quotes from Kennedy’s majority opinion before launching another round of invective:
“’The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)
This truly extraordinary passage ranges from the incoherent (“Ask the nearest hippie”—what could that possibly mean?) to the startling assertion that marriage constricts intimacy and self-expression. (Anything you’ve been wanting to tell us about the state of your marriage, Your Honor?)
But for purposes of this discussion, let us simply ask: If a Supreme Court justice feels free to argue in this manner with his longtime, highly educated, close-proximity colleagues on matters of great legal and moral gravity, what can we expect of everyone else as we engage the great issues of the day from often sharply different perspectives?
Is there not some Code of Conduct among the justices that would prevent such vituperation and personal invective in the context of debate? We should note that nowhere in Justice Kennedy’s opinion for the majority is there even a hint of personal attack or rancor for those whose previous decisions and laws were being overturned by their decision. Only a carefully reasoned legal analysis, grounded in eloquent, sometimes soaring language regarding what the justices consider fundamental legal and human rights.
Recently, with debates raging on social media regarding the Confederate flag, Obamacare and now gay marriage, I have considered the merits of some kind of Code of Conduct for all those who wish to engage the matters of the day, so that the debates can proceed on a basis that does not attack the essential humanity and integrity of the opposition.
It’s an extraordinarily difficult task, this learning how to argue and agree to disagree. Can take a whole lifetime of trial, error, failure, then another trial…and another…
Yes, we must acknowledge that where there are humans, there will be rancor. But how we go about addressing and getting to the bottom of that rancor says everything about what kind of people we both are and aspire yet to be.
As a member of the Supreme Court of our land, Justice Scalia should set a shining example rather than debasing his colleagues, himself, and by extension, the nation at large, by heaping scorn upon those who do not see the world through his lens.
Sometimes, it seems that passionate argument is a necessary precursor to change, but in the end, only tenderness and humility toward the great travails of our nation’s history and our own lives will see the full fruits of that change come to pass. And that fiddles can encompass the whole story…
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Deep appreciation to the photographers:
Elizabeth Haslam, whose photos grace the rotating banner at the top of this page. Some rights reserved under Creative Commons licensing, see more at: https://www.flickr.com/photos/lizhaslam/
Scales of justice photo near top of page by Michael Grimes, Birmingham, UK, some rights reserved under Creative Commons licensing, see more at: https://www.flickr.com/photos/citizensheep/
Gay marriage protest photo by sushiesque, some rights reserved under Creative Commons licensing, see more at: https://www.flickr.com/photos/sushiesque/
Seagull photo by Peter Dutton, Manorville, Long Island, some rights reserved under Creative Commons licensing, see more at: www.flickr.com/photos/joeshlabotnik/