Scalia Dissents: Some Favorites

With the passing of that great man I thought it appropriate in remembrance to quote from one or two of Scalia’s dissents. Readers may have their own favorites. The reader will note that Scalia’s crystal ball was fully functional.

There is, incidentally, a book of the same name as today’s post.

PGA Tour, Inc V Martin

The court (in 2001) decided in favor of expanding the power of central government under a desperate interpretation of the Americans with Disability ACT (ADA). A case in which Equality won and Reason lost. Scalia dissents.

Nowhere is it writ that PGA TOUR golf must be classic “essential” golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules–if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”) they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone—not even the Supreme Court of the United States—can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U.S. Const., Art. I, [sec]8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Lawrence v Texas

In which the court (in 2003) expanded the power of central government under a desperate interpretation that said, by implication, the Constitution supported buggery. A case in which Equality won and Reason lost. Scalia dissents:

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation…State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…

What a massive disruption of the current social order, therefore, the overruling of Bowers entails…

If all the Court means by “acting in private” is “on private premises, with the doors closed and windows covered,” it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a “fundamental right,” even though all other consensual sodomy was criminalized.

I remind the read that bestiality is legal in several Enlightened countries. It is, of course, everywhere immoral, which proves the law is often an ass. And that truth, dear reader, is what justifies rebellion.

United States v Windsor

In which the court (in 2013) expanded the power of central government under a desperate interpretation that said the Defense of Marriage Act didn’t really mean it. A case in which Equality won and Reason lost. Scalia dissents:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case…

[This decision] is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every-where “primary” in its role.

Obergefell et al. v Hodges

In which the court (in 2013) expanded the power of central government under a desperate interpretation of the Constitution where it was “discovered” &pi = 3. No; I’m only kidding. It was “discovered” the Constitution required adults to swear two (or more) men can “marry” each other. A case in which Equality won and Reason lost. Scalia dissents:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built…it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.

In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement…

Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.

Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit…

Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages…

…the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples…The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity…

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans…

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

The Story

Even though the sample is small, the moral of the story is obvious. An increasingly powerful central government awards itself powers it does not possess, resulting in a populace which is all but mandated to worship the State and, since this is a Democracy, itself. To which all we can say is God bless Antonin Scalia. Requiescat in pace.