I was also quite struck, as you were, Mark, by the language in the various dissents in Obergefell, not just for their vehemence, but for the ways in which each dissent feels like a kind of Rorschach test of each justice’s own anxieties.
Chief Justice John Roberts doesn’t want people to hate him, and he doesn’t want them to hate judges. (See, for example, his decision in Williams-Yulee, the Florida judicial speech case from earlier this term.) Then there’s Justice Samuel Alito: He doesn’t want to be called a bigot, and he doesn’t want people with strong conscience objections to marriage equality to be called bigots, either. And Justice Clarence Thomas doesn’t want the government to be in the business of conferring and taking away his dignity, or the dignity of others. He also doesn’t want his religious liberty trammeled. So everyone writes about how this opinion will hurt them and people like them.
And Justice Antonin Scalia? Well, one friend of mine suggested that between “applesauce” and “fortune cookies,” he might just really need a nap and a snack. But his dissent in Obergefell—whatever else it may be—is a piece of performance art by the guy who will never relinquish the claim to being the smartest guy in the room. This vitriol—personal, slashing, and relentless—is the kind of thing that reportedly pushed Sandra Day O’Connor from the right to the center of the court. And why wouldn’t it? It disputes whether the scorned one even deserves to be on a court in the first place. (Scalia on Friday, directed at Justice Anthony Kennedy: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the court that began, ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”)
I mention this because one striking commonality in most of the dissents Friday is that weird vein of professional judicial self-loathing the dissenters choose to mine when they really want to go for the jugular. Whether it’s the chief justice’s jarring “Just who do we think we are?” to Scalia’s odd discursion on the lack of evangelical justices or real Westerners on the Supreme Court. (“Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner [California does not count]. Not a single evangelical Christian [a group that composes about one-quarter of Americans], or even a Protestant of any denomination.”) Scalia is just dripping with contempt for this “select, patrician, highly unrepresentative panel of nine.” He takes a whack at his colleagues—and, I guess, himself—for separate and concurring opinions loaded with “silly extravagances.” He invites his readers to feel as impotent in the face of this judicial tyranny as he feels.
Thomas also rails at the fact that a “bare majority of this court” is able to “grant this wish, wiping out with the stroke of a keyboard the results of the political process in over 30 states.” And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”
Recall back at oral argument when Elena Kagan said, “We don’t live in a pure democracy, we live in a constitutional democracy.” Isn’t that the answer to the dissenters’ political process questions? Or is that only the answer on campaign finance reform?
Mark, I wonder if you would talk more about the failure of the majority holding to lay down any coherent doctrine. Kenji writes so powerfully about what Kennedy is doing at the interstices of Equal Protection and Due Process, but I wonder what your dream Obergefell would have said, and how it would have applied the 14th Amendment.