You close our conversation with thoughts on what animates Justice O’Connor, all of which are greatly appreciated. I’d like to close with some thoughts on Justice Scalia.
First, I need to point out a case of the media getting a quote completely wrong and disseminating it so that it becomes universally believed. Almost every account of Scalia’s dissent in Lawrence, the Texas sodomy case, proclaims the fact that Scalia wrote: “I have nothing against homosexuals.” Whether this was newsworthy for its genuineness or for its disingenuousness is unclear to me. The quote was taken completely out of context. What Scalia actually wrote in his dissent is more ambivalent: “I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.” Scalia wasn’t saying that he has nothing against homosexuals (he wouldn’t think such a personal comment was appropriate anyway). He was saying that in his view, homosexuals (and by extension the KKK and abortion rights advocates) are entitled to use all the democratic tools at their disposal to pursue their cause. Scalia has nothing against democracy. That is what he was saying.
Does that mean Scalia has nothing against homosexuals or the KKK or abortion rights advocates? I don’t think that’s clear from his dissent. Scalia gives voice to the same sentiment he expressed at oral argument in this case: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home.” Justice Kennedy’s compassion to gay rights irks him beyond imagining. In fact, Scalia believes that absent the minority influence of a “law-profession culture that has largely signed on to the so-called homosexual agenda,” yesterday’s result would not have come about. I do not read this dissent as coming from a man who is agnostic on the subject of homosexuality.
Here is where Scalia invokes the term “culture war”—echoing his complaint about the “kulturkampf” in Romer v. Evans, the gay rights case decided in 1996, on which he was also on the losing side. He’s referring to a theory that society is constantly undergoing a process of renewal, wherein subcultures try to overturn the Judeo-Christian establishment using words, then law, and then military action. Certainly if one worries that feminists, homosexuals, and abortionists are at any moment going to give up their legal appeals and roll out the tanks, Scalia’s fears are understandable. Of course, then you’re living in Limbaugh-land.
What does seem disingenuous to me is that Scalia asserts that the role of the court in these “culture wars” is to “assur[e], as neutral observer, that the democratic rules of engagement are observed.” While I’m not even sure what that means, it does seem to me that Scalia has more than once “taken sides in the culture war”—every time he votes to support school prayer, or vouchers, or keeping gay scoutmasters out of the Boy Scouts. Sure, he calls it “Originalism” and claims to be neutrally supporting neutral principles espoused by the framers of the Constitution. But the neutral principles espoused by the framers were rooted in the same Judeo-Christian values he shares. You can’t say you aren’t taking sides in the culture wars simply because you’re taking the side of tradition.
In truth, I’m not sure when the court hasn’t played a crucial part in the “culture wars.” In Plessy? In Brown v. Board? In Johnson—the flag burning case? In Bowers? It’s hard to imagine the court deciding any issue that affects modern culture without “taking sides.”
I have really enjoyed breakfasting with you this week. Your insight on both the court and the law remain unparalleled. As for me? I never know what to do with myself when they close up shop at the court for the summer. I’m ever in peril of becoming Bartleby the Scrivener, sitting in the courtroom, taking notes on nothing, as they sweep up the sawdust until next fall. …