"Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution.... In its vain attempt to make the incredible plausible ...today’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort....
Antonin Scalia attended all-male Xavier High School in Manhattan - which was styled a military academy. Boys attending that Jesuit school wore West Point-style tunics and hats. It was a commuter school. We, who met them on the field of athletic combat as fellow members of the Jesuit Athletic Conference, referred to them snidely as “subway commandos”. Like Scalia, I highly regard my eight years of all-male Jesuit education. But I feel none of the fury that Scalia unleashed over the end of public single-sex education.
Frost summarizes Scalia’s hot rhetoric in his essay, which finds the dissent ineffective due to its hyperbolic tone:
"In the course of his dissent in United States v. Virginia, Justice Antonin Scalia criticizes the Court's opinion in language that makes his authorial voice the most distinctive on the U.S. Supreme Court. As he attacks the majority's decision to require, on equal protection grounds, the previously all-male Virginia Military Institute ("VMI") to admit qualified women, he accuses the majority of being "illiberal," "counter-majoritarian," and "self-righteous." He asserts that the majority's equal protection jurisprudence is random, that the Court "load[s] the dice" or plays "Supreme Court peek-a-boo" with the standards of review it applies, that it engages in "politics-smuggled-into-law" and "do-it-yourself . . . factfinding," that it re-writes the U.S. Constitution with "custom-built 'tests,'" and "ad-hocery," and that it employs "fanciful description[s]" of its own decisions."
A couple of readers have pointed out that my post may give too much credence to the suggestion that Justice Scalia reserves his harshest word for women. It's a serious thing to credit the suggestion. It would take a careful look to actually make the charge - and maybe it should not be raised so casually.
ReplyDeleteI took a look at Lawrence v. Texas, which banned the criminal sodomy laws. Justice Scalia discusses Kennedy's majority opinion and Justice O'Connor's comments in strong, but not abusive terms.
It's not so harsh. His heaviest swipes are at the Association of American Law Schools. His rhetoric is of course forceful - and a pretty good bit of prediction of the decision's implications. See this excerpt:
"At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added).
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,”ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so."
When I was at Xavier one of the military science instructors warned us about shooting ourselves in the foot. I think Scalia missed that class.
ReplyDeletehttp://riles52.blogspot.com/2011/03/paoo-make-bay-windows-next-stop-ellen.html