Scalia Indicts Windsor Decision’s Intentional Bias

“It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.” (United States v. Windsor, Scalia, J. Dissenting, p.18)

If falsely allowed to stand in place of the U.S. Constitution, the opinion recently expressed by a majority of Supreme Court Justices in United States v. Windsor, marks the end of self-government, of, by and for the people of the United States. Americans sincerely loyal to the U.S. Constitution, and the republican form of government it guarantees (Article IV.4), are right to react to their opinion with a deep sense of grief, anger and resentment. Tragically, many of the people who feel this way are ill equipped to present the reasoning that justifies their feelings.

Given his reputation as a “conservative” many of these people doubtless thought they could rely upon the expectation that Justice Antonin Scalia’s dissent from the majority opinion In Windsor would do for them what they believe they are unable to do for themselves. It’s is a sign of the times, ominous for the recovery of America’s liberty, that this expectation turned out to be mistaken. Justice Scalia argued with some cogency, on technical grounds, that the particular issue at stake in Windsor had already been resolved by lower court rulings. In his opinion, it was therefore unconstitutional for the Supreme Court to assert jurisdiction in the matter.

When it came to the supposed logic of the decision, Justice Scalia accurately ridiculed the majority’s substitution of deployment of invective instead of reasoning logically rooted in the Constitution. But, after shrewdly demonstrating the way in which the Court’s diatribe against opponents of homosexual so-called marriage is likely to be abused in future rulings from the Federal Judiciary, Scalia offered nothing in his dissent to forestall that abuse except the demonstrably false pretense of Constitutional neutrality quoted at the outset of this essay.

In his criticism of the Windsor majority’s questionable assertion of jurisdiction in the case, Justice Scalia shrewdly discerned the derogatory significance of the majority’s careless zeal. It indicates that they were prejudiced, firmly determined to rule in a certain way without fairly considering arguments that ran against their predisposition. The result was not an exercise of judicial review, arising because they fairly considered the merits of the case in light of the Constitution’s provisions. Rather, from the outset they aimed to usurp legislative authority. As a political tactic, they ornamented their intention with dishonorable mentions of this or that Constitutional provision. They deployed this tactic without bothering to set out the logical reasoning (ratio) needed to substantiate a conflict between the Constitution and the law duly made by Congress in pursuance thereof, which must otherwise be honored as the Supreme Law of the land (Article VI.2). Absent a reasonably logical demonstration that such a conflict exists, the Court’s exercise of superior jurisdiction in the case was just an excuse to substitute their will for that of the constitutionally ordained legislative power. This usurpation of legislative power was especially egregious because the subject matter that underlies the case is so crucial to the orderly perpetuation of the social life, civil liberty, and real self-government of the American people.

By itself the majority’s obviously prejudiced approach to judgment warrants impeachment and removal of the Justices complicit in it. By destroying the Supreme Court’s credibility as an unbiased tribunal, they directly undermine its vital contribution to the actual and perceived integrity of the U.S. Judiciary, the Constitution and the whole government it establishes for the United States. At present that government is already rife with scandals that have undermined the people’s confidence in its conduct of their affairs. The Windsor majority’s open display of biased judicial intent pushes the nation further toward the sort of irreconcilable breach that occasioned the only outbreak of civil war in the nation’s history. This is especially true in the Windsor case, because the Court’s action affects the concrete integrity of the family, the institution most critical to the character and welfare of the individuals that make up the society. If the Windsor majority’s willfully injudicious handling of this matter does not qualify as a high crime and misdemeanor of the gravest import, nothing ever will.

As it is, Justice Scalia’s dissent could almost be taken for the opening statement of the prosecutor at the trial these Justices richly deserve for their misconduct. He masterfully traces the technical considerations that prove the majority’s political motive for taking the case. Then he demonstrates that this prejudicial motive resulted in a tendentious, incoherent, and self-contradictory expression of opinion that left the majority’s decision in the case as groundless, in Constitutional terms, as its purloined jurisdiction over it. Having torn away any pretense of fairness and rationality from the majority’s decision, he decries the majority’s vicious verbal assault against the opponents of homosexual so-called marriage. He shrewdly discerns their prejudicial intent to bias future decisions of the Federal Judiciary so that arguments which justify government action in defense of marriage as a God-endowed unalienable right will never again receive a fair hearing in any U.S. Court.

[In my next post: Is Scalia’s Dissent Deficient in principle?]