FIVE MEDITATIONS ON SCALIA’S DISSENT
A Few Thoughts from a Layman on
the Lawrence and Garner v Texas Case

Introduction

Of course, this is about the Supreme Court decision, handed down last Thursday, that overturned 1986's Bowers v Hardwick decision and ruled anti-sodomy laws unconstitutional. Why examine the dissenting opinion instead of the majority opinion? It’s not too far fetched to imagine that Scalia’s views represent the intellectual apex of conservative thinking on the issue of homosexuality and the law in the United States. His dissent, most likely, will form the philosophical basis for any and all future challenges to the new “law of the land” concerning gay sex. Or maybe I’m writing this just because I like to kick an arrogant conservative when he’s down. Either way, his opinion is worthy of analysis.

Before I go any further, I have to state that, for me, while considering Scalia’s opinion, the Bush v Gore case looms largely in the background. That is to say, despite Scalia’s self-described “originalist” judicial philosophy (in other words, deciding cases according to the plain language of the Constitution, or according to the framers’ “original intent”), despite others (including the President) describing him as a “strict constructionist” (a term originally coined by William Rehnquist to mean a judge who “in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs”), Scalia is, in fact, a judicial activist when he feels like it.

For those of you who don’t know, “judicial activism,” as far as I can tell, refers to judges going above and beyond the absolute letter of the law when deciding cases. Most of the landmark civil rights decisions of the 20th century were made by a couple of US Supreme Courts filled with activist judges: school desegregation, Miranda warnings, abortion rights, access to contraception, the exclusionary rule, and a host of other civil rights that Americans now take for granted were created by the Supreme Court. Generally, the term “judicial activism” has been a conservative battle cry. Liberals rarely, if ever, seem to have a problem with activist judges. One wonders if “strict constructionists” or “originalists” are as concerned with judicial philosophy as they are with the dominance of conservative views. As Thomas Sowell, senior fellow at the conservative Hoover Institution, has observed, the distinction between “judicial activism” and “judicial restraint” is murky, at best, in the public discourse:

Like many catchwords, "judicial activism" has acquired so many different meanings as to obscure more than it reveals. Yet it is not a term that can simply be ignored as intellectually "void for vagueness" for at the heart of it are concerns about the very meaning and survival of law. Abandonment of the term not being a viable option, clarification becomes imperative.

"Judicial activism" and "judicial restraint" raise logically obvious but often ignored questions: Activism toward what? Restraint toward what? Are judges deemed to be activist or restrained toward (1) the current popular majority, (2) the legislature representing the current popular majority, (3) the statutes passed by present or past legislatures, (4) the acts of current of past executive or administrative agencies, (5) the meaning of the words in the Constitution, (6) the principles or purposes of those who wrote the Constitution, or (7) the legal precedents established by previous judicial interpretations of the Constitution?

Activism or restraint toward one of these does not imply the same toward all the others, and may in some instances imply the opposite toward some other or others.

Of course, Sowell, a conservative, goes on to bash activism on the bench, but his point that concepts of judicial philosophy are easily twisted by popular rhetoric is unassailable. The truth is that not a single sitting US Supreme Court Justice is literally a “strict constructionist” or an “originalist.” All of them have ruled in ways that go beyond the plain, clear language of the Constitution: every time the citizen “rights” of corporations, originally granted by the Supreme Court in the 1886 Santa Clara County v Southern Pacific case, are upheld by the Court, the justices (including the so-called “strict constructionists”) are engaging in “judicial activism;” the incomprehensible, party-line decision for 2000’s Bush v Gore case is a clear-cut abandonment of the framer’s “original intent.”

It is my belief, therefore, that Scalia is generally a “strict constructionist” when considering issues that are traditionally liberal; however, when considering traditionally conservative issues, “judicial activism” isn’t so bad. This kind of conservative hypocrisy is certainly not a rarity. For instance, “state’s rights” usually means “state’s rights” to do what conservatives want them to do, not what states may actually want to do themselves. Another example is how quickly the free market fundamentalists will move to bail out a massive corporation in trouble. Basically, it appears that conservatives adhere to the old adage, “do as I say, not as I do.”

Keep that thought in mind as you read my meditations on Scalia’s dissent.