One reason I changed the name and tone of this site a bit ago is that, while I have a lot of deeply-held convictions and strong opinions and am way more than happy to share them, I hate the idea that those things define a person, that they compel him to toe a certain line in all instances, that they make all those who disagree, however reasonably, the enemy. “The Cranky Lefty,” in the political meaning of it, might accurately describe my leaning and general disposition, but kind of signifies the opposite of anything I want to be, a myopic and closed-minded crusader who is too busy speaking to listen.
And Oh. My. God were there a lot of cranky lefties on Tuesday and Wednesday of this week.
I mean that in the nicest possible way. By and large, these are my people, and I agree with them and love them. Like them, I was sad to see the Supreme Court dismantle the Voting Rights Act (though I think they were probably right, or at least on solid ground). I cheered the (temporary, but amazing) victory in Texas and the (permanent, and soon to be followed by bigger) victories for marriage equality with the invalidation of California’s Prop 8 and a very important part of the Defense of Marriage Act. I know that these people mean well, and that their hearts, by and large, are in the best of places.
I’m not okay, usually, with ascribing hidden motives or rank stupidity to people who happen to disagree with me. Sure, sometimes it’s appropriate — I’m quite sure Michele Bachmann and Sarah Palin have nothing of value to offer anyone intellectually, for instance, and I’d never rule out anything regarding Rush Limbaugh’s motives — but by and large, people just believe what they believe (however horrifying it might be to me) and act accordingly. And I guess I’m especially sensitive when it comes to the Supreme Court.
Maybe it’s because I used to be one of them (a conservative, that is, from high school through most of law school). Maybe it’s because I’m a lawyer. Maybe it’s because I’ve met Anthony Kennedy and Clarence Thomas — both on law school outings, nothing to brag about — and found both to be among the most engaging and intelligent people I’ve ever listened or spoken to. I may not think they belong in one of the 10 or 20 most powerful positions in this country (especially not in the latter case), but there’s no question in my mind that they’re sharp people who believe what they say.
The popular target this week (and usually) is Antonin Scalia. And I get it. Every justice on the Court, and probably every justice who’s ever been on the Court, has voted with something of an ideological bent. And Scalia, with his pompous and dismissive writing style and…what I guess I’d call unpredictability, seems to come closest to pursuing an agenda at the expense of actually applying the law. I still don’t think that’s the case, not usually. I have no doubt that Scalia believes what he says, and that the reasons he provides are real, legally defensible (and to him, the inarguably correct) reasons for arriving at those positions. He may be a blowhard, may be out of touch, may be entirely wrong, but he’s not arbitrary or any more a hypocrite than any of the rest of us.
Make no mistake: in the DOMA case of United States v. Windsor (and ten years earlier, Lawrence v. Texas), some of those reasons have involved a basic misunderstanding of human nature and a refusal to accept homosexual individuals as a minority group that needs to be protected: that’s the whole second part of Scalia’s DOMA dissent. Which is ignorant and out of touch, the ramblings of a man clawing ineffectually at his understanding of the world as it slips out of his grasp forever. Rip on that nonsense all you want. It’s ridiculous, and it needs to be driven out of every dark little corner in which it hides.
A lot of the ire, though, is (mis-)focused on the first part of Scalia’s dissent, paired with his joining the majority opinion in Shelby County v. Holder (the voting rights case), to suggest that Scalia applied inexcusably inconsistent logic in striking down one law he didn’t like and voting to uphold another that he did. This showed up on The Daily Show (which summed it up as, to paraphrase: “the difference is, Scalia likes the Defense of Marriage Act and doesn’t like the Voting Rights Act”) and The Colbert Report on Wednesday night, and on many of my friends’ (including lawyer-friends’) Facebook status updates, and is captured in writing most succinctly (and hyperbolically) here.
And it’s mostly bullshit.
Scalia did not vote to suddenly overturn the Voting Rights Act of 1965 because it was old. He voted, rather, to overturn the reauthorization of the Voting Rights Act that occurred in 2006, which locked the originally-temporary law in for another 25 years and yet merely passed along the same criteria that were used in 1965 (and were at that time intended to persist for only five years) to determine to which states the preclearance requirements applied. If a jurisdiction had been in danger of racist election-rigging in 1964, the 2006 reauthorization conclusively presumed that the same jurisdiction was a problem in 2006, considering nothing that had happened in the intervening four decades. So Scalia’s (and the Court’s) decision was not that the fifty-year-old statute was suddenly unconstitutional, but rather that the reauthorization for another 25 years, allowing the federal government to strictly police nine states and not the 41 others, should have required Congress to come up with better reasoning for that unequal treatment than “this is what they decided was appropriate 40 years ago.”
And frankly? Reasonable people can disagree, but I think they were right. I hate the decision on a political and philosophical level, but I think it was legally correct, while Justice Ginsburg’s much more pleasant and agreeable dissent is kind of hard to defend from a strictly constitutional standpoint. In any case, it’s a close question, and dismissing the side you disagree with by claiming they simply ignored democracy in order to benefit Republican candidates or oppress minorities they don’t like is short-sighted and dangerously oversimplifying.
So, first, Scalia’s dissent in the DOMA case on the grounds that the Court shouldn’t overturn “democratically adopted legislation” and was inappropriately enlarging its role did not conflict with his VRA decision, because his VRA decision didn’t represent what his detractors are claiming it did. Second, though, and more importantly, he also wasn’t saying what people seem to assume he was in the DOMA case.
To some extent, this is where Scalia’s self-important and overly broad language gets him in trouble, but it’s also a case of people reading his introduction and nothing else. Scalia felt that the Court lacked authority to decide the case and that the majority was expanding the Court’s role in government, not because the people or Congress voted for DOMA and it should be left alone in favor of majority rule, but because there was no dispute in this particular case for the Court to settle.
And here, he has a pretty good point. The plaintiff in the district court case had claimed DOMA was unconstitutional, and the defendant — the G.W. Bush-led executive branch of our government — strenuously disagreed. By the time the appeal came up, however, a new dude was in charge, and he instructed the Attorney General not to defend DOMA in the courts. So now, both parties to the case agreed that DOMA was unconstitutional. Article III of the Constitution empowers judges to hear “‘Cases’ and ‘Controversies,’” and the moment the government agreed with the citizens that DOMA was unconstitutional, no case or controversy remained for the Court to resolve, so the Constitution gave the Court no right to weigh in. The Court’s job is to resolve disputes between parties, and there wasn’t one.
So if you read his introduction and skim or skip everything else (including the VRA opinion), it looks like Scalia is saying that the people’s will has to be respected with regard to a law he agrees with (DOMA) and should be disregarded entirely with regard to one he dislikes (VRA). But on closer inspection, as is nearly always the case, it’s more complicated than that. Scalia might be all kinds of awful things, but he’s a brilliant lawyer with certain (misguided) convictions, and those convictions quite understandably led him to both the VRA and DOMA decisions.
Attack the bigotry, archaicality and/or basic failure to understand biology that underlies the refusal to treat individuals in same-sex relationships as the minority group in need of protection that they are; attack the hell out of that. That needs to go away, from everywhere, and now. Picking apart his words out of context, though, finding hypocrisy where there is none? That doesn’t do anybody any good.