"We are under a Constitution, but the Constitution is what the judges say it is."
--Chief Justice Charles Evans Hughes (1862 - 1948)
The opinion written by Justice Kennedy in respect to the Obergefell case, about which see previous post, is something to read. So, however, are the dissenting opinions.
There has been a great deal of snarking on liberal media directed at Justice Scalia and Justice Thomas, whose dissenting opinions had fiery quotes. One easily imagines these men were seeking the attention. I will admit to some snarking myself, mainly in the creation of two social media memes:
Chief Justice Roberts's own dissent, on the other hand, gives us a quiet and orderly tour of his mind. In fact, I suspect he wrote it with the general reader in mind, and for this I give him credit.
In this PDF document, the dissenting opinions begin on page 40. Click here.The first is that of the Chief Justice.
Many Supreme Court rulings are opaque to the general reader because the arguments turn on fine points of legal theory and precedent, dense citations, and arguments using terminology with which most of us not trained in law will be unfamiliar.
With Obergefell, that opacity is not so dense, and the reader can follow arguments predicated on definitions and logic, and in some cases we get a glimpse as to how these powerful people, these Justices of our Supreme Court, define "liberty" and view power as it works in our society.
(Be reminded, these Justices are appointed to life terms. They can be impeached, but it has only happened once and that was in 1804.)
In the view of Chief Justice Roberts, the Supreme Court was snatching the issue away from the people and the democratic process, and instead acting like a legislature.
...for those who believe in a government of laws, not of men, the majority's approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens - through the democratic process - to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
This is a view echoed in other dissents - notably, Scalia's. If you are noticing a striking parallel to the "states rights" argument for slavery or for Jim Crow laws, so have I. If Roberts had the opportunity to revisit Brown v. Board of Education (1954), would he argue that this was "stealing" the debate away from the Democratic process? Would he argue that it was anti-democratic to overturn Plessy v. Ferguson (1896), a ruling which upheld the "separate but equal" doctrine and rejected a claim that racial segregation violated the 14th Amendment?
The logic on display in this dissent suggests that civil equality for groups being treated as "separate but equal" due to social prejudice should be put to a popular vote. This abandons an oppressed minority to the whim of the majority under the color of "democracy."
Roberts also expounds on the definition of marriage, articulating a view that is ahistoric and de-politicized.
The universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as the result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history...A thorough rebuttal of this remarkable dictum would fill a large book.
Deeper into the dissent, we return to the bigger issue of power here. Citing a number of legal cases and precedents, Roberts talks about the process by which the Court decides that rights that are not enumerated in the Constitution (there is no amendment saying a man can marry a man, for instance) are implied and therefore should be "constitutionalized," as Roberts puts it.
In a plea for restraint by the judiciary (let's not get crazy granting rights from the bench, guys), Roberts cites a dissent in the Dred Scott decision. This is a famously notorious case in which the Court decided that African-Americans (not even freedmen) could not be citizens, had no standing to sue for their freedom, and also ruled that the federal government couldn't regulate slavery in the free states and territories - for this violated "implied rights" of slaveholders! (Rights of property over the dignity of human beings, you see.)
He quoted from the dissenting opinion of Justice Benjamin Robbins Curtis in that case, arguing that when Justices veer from fixed rules of legal interpretation and apply their own personal feelings about constitutional meaning to guide them, "...we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean."
Do you see the contradiction? Let's break this down a bit.
It's bad for Justices to legislate their own opinions. Because then we aren't being ruled by an unchanging document anymore, we are being judged by human beings. This is legislating from the bench and it is bad.
But the Supreme Court is an institution of rule by people. They do so in the name of a document, and aspire to do so with restraint and fidelity to that document, but to argue that they are not interpreting the document is madness. The Constitution is what the Supreme Court says it is; it is rule by people, who are governed by class ideology themselves.
What Roberts doesn't see is that he is attempting to legislate, retroactively, his opinion about what marriage is. That is, an ahistoric, de-politicized, fantasy that marriage is and always has been this one particular kind of marriage, alleging "...people around the world have viewed [marriage] the same way for thousands of years."
He is accusing the majority of Justices of activism. The accusation can be judged on its own merits. But he is not acknowledging his own activism in asserting what is and what is not an implied right. The burden of proof is on people to prove they deserve civil equality; he does not put the burden of proof on those seeking to abridge civil equality.
And that, I think, is the crux of the argument about power. The democrat would always put the burden of proof on the one trying to abridge someone else's rights; yet there are those who ask, "What about the freedom to oppress?" Which is in part what led to Dredd Scott and even the Civil War, isn't it? By the 28th page of his dissent, we have Roberts lamenting that letting Sally marry Jenny either demeans those who do not wish Sally to marry Jenny, or worse, abridges the free exercise of their religion.
Roberts sighs for an apolitical court, but there is nothing apolitical about him or this institution. It is a political fight in black robes over who can presume to benefit from "substantive due process" and who may not, whether corporations enjoy the rights of persons (an idea going back quite some time), and what reforms to the powers enjoyed by the rich and established authorities may stand. The doctrine of judicial restraint is as arbitrary and fanciful as Roberts's conception of the history of marriage.
The court is an instrument of class power - as is the Constitution itself - and the Court has most often found for the powerful while enjoying aristocratic protection from democratic oversight.