Justice Antonin Scalia authored a Supreme Court opinion published today that curtailed certain kinds of police searches using drug-sniffing dogs.  The holding in Florida v. Jardines was that such searches are unconstitutional and a violation of the rights secured by the Fourth Amendment.  Scalia notably lead a 5-4 majority that included “liberal” justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg, in opposition to the “conservative” minority that included Chief Justice Roberts and justices Samuel Alito and Anthony Kennedy (along with Stephen Breyer).

Don’t expect to hear all that much about this decision in the days to come.

No, the primary thrust of the Scalia-related coverage over the next week will be what an intolerant, ignorant monster he is.  He’ll be roundly criticized for his judicial philosophy by people who have never so much as read the entirety of the Constitution.  A few choice quotes will be bandied about by certain websites as grist for their ideological mill.

So, I write today to defend a man whose intellect I unashamedly admire—a man who really needs no defense in the first place.

Perhaps the most-talked-about exchange during today’s Supreme Court Prop 8 oral argument (and certainly the one of most interest to me personally) was this one, between Justice Scalia and Ted Olson.  It’s somewhat-lengthy, but worth the read.  I’ll comment at the end:

MR. OLSON: The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married-

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We–we decide what the law is. I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?  Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true.  But don’t give me a question to my question.  

(Laughter.)

JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional-

JUSTICE SCALIA: That — that’s not when it became unconstitutional.  That’s when they acted in an unconstitutional matter — in an unconstitutional matter.  When did it become unconstitutional to prohibit gays from marrying?

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know.  What the court decided was the case that came before it –

JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.

MR. OLSON: Yes.

JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then –

MR. OLSON: Because the case that’s before you –

JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?

MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.

CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?

MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this -marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.

JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow civil unions?

MR. OLSON: We do, we submit that. You could write a narrower decision.

JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those –

MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that –

JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.

MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?

JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

And that is precisely the question I would have asked.

Scalia, much-derided by those who see him as an enemy to their ideological preferences, proffers an absolutely salient inquiry that is fundamental to the business of judicial interpretation.

Namely, if we assume arguendo that constitutional rights may exist outside of those specifically mentioned by the Constitution (e.g. a prohibition against unlawful searches and seizures), and that the Constitution is a “living document,” what is the criteria by which those unenumerated rights are born into existence?  How do we know when the Constitution has “changed?”

Olson is a sharp legal mind in his own right who performed quite well in many other parts of the oral argument.  Here, he was crushed.

Olson’s response to Scalia’s line of questioning was to side-step by bringing up segregated schools, and, when pressed, to present a circular logic that basically said that prohibiting gay marriage became unconstitutional when the California Supreme Court said that prohibiting gay marriage was unconstitutional(!).

Finally, Scalia forced Olson to get to the heart of the matter.  Here’s the key exchange:

JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we -as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Note: I think that Olson meant to say “unconstitutional” in his first quote above.  Either way, his argument is essentially that of all of those who advocate judicial activism.  Namely, that something becomes a constitutional right when a critical mass of people (or at least cultural elites) decide that it’s something very, very important.

This is an incoherent, unstable means of interpreting the Constitution.

Scalia knows this, which is why he helped lead Olson down a path that exposed the weakness (perhaps even absurdity) of the argument.[1]

Speaking as someone who shamelessly concurs with most of the tenets of Scalia’s view of  constitutional interpretation, the argument Olson is making on that point folds in on itself quite easily.  If our culture is changing, then why not allow the democratic process to work itself out?  This is the argument I’ve made over and over.

In other words, even if we accept the premise that judicial activism is valid in those rare circumstances where a particular group has no access to the political process, doesn’t the increasing support for gay marriage and the proliferation of legislatively-enacted gay marriage legalization lead one to the conclusion that such an extraordinary measure would be particularly inappropriate in this instance?  And, on another front, shouldn’t other, previously “undiscovered” rights be able to be listed out at once?  If our shifting culture has made a prohibition against gay marriage unconstitutional, shouldn’t other mores have created new rights as well?  Is there a right to use drugs, or at least marijuana?  Is health care now a constitutional right?  Various forms of gambling are legal in many jurisdictions.  Do we have a constitutional right to gamble?

This is the trouble with retconning the Constitution to include one’s own ideology where the Document is, in fact, silent on a given point.

As I’ve said before, I think gay marriage will be legal in every American jurisdiction in a decade or so (and, incidentally, I think marriage recognition by the government will cease to exist within 50 years after that).  What people fail to realize is that trend is just another reason not to create a constitutional right in this case.

To wit, Nate Silver had a typically excellent piece up that makes the same point that I made last year (except Silver’s piece actually has, you know, data to back up my previous supposition).  Namely, that gay marriage legalization will be nearly universal by 2020.  The chart at right (click to zoom) projects gay marriage approval figures in 2016 and 2020.

With some provisos, the trend is decisive.  Within seven years, support for gay marriage legalization will exist in 44 jurisdictions, some of which have obviously already legalized it.  It’s a fait accompli.  Gay marriage will be the law of the land very soon.

Given that clear momentum, as well as the Court’s entirely proper hesitancy to weigh in on “live” political issues, especially post-Roe, I doubt we’ll see the Court discover the constitutional right that some on the pro-gay-marriage side would hope it would.[2]  The fact that half the oral argument today dealt with jurisdictional and standing questions is another hint that there likely won’t be anything to come out of the Prop 8 case in either direction that amounts to a major decision.  DOMA could be another matter, although I also suspect that decision will be fairly narrow and not create a sweeping right to gay marriage against which no state may legislate.[3]

But the essential question is whether the Court is, in fact, compelled to announce such a new right exists in the Constitution.

I would argue that the answer is no.  I think a proper understanding of the Equal Protection Clause holds that the EPC does not prohibit a state from reserving marriage exclusively for of-age, non-plural, non-closely-related, heterosexual couples.  There is at least a rational basis for doing so.  Furthermore, because we’re in rational basis territory, means and ends don’t have to be a tight fit.  Therefore, a desire to keep procreating couples together via marriage does not mean that every couple must prove their ability to procreate.[4]

Now, again, we may think that unwise or misguided or somehow antiquated, but the point is that what a state “should” do is not the same as what a state “may” do.  For example, I have no doubt that a state could outlaw sugary beverages over a certain size (or altogether, in fact).  A state could most definitely outlaw football.  A state might also decide to ban private pet ownership.  That does not mean I believe they should take such actions.  But, constitutionally, they may do so.  This is the crux of the distinction I explained a few weeks ago.

Olson’s final position, that constitutional rights change based on our nation’s cultural mood, is a tacit admission that there is no concrete basis for his argument in the Constitution itself.  Olson knows that the EPC was never intended to cover circumstances like the one at issue here, and that using it in that manner would require a major shift in jurisprudence that this Court is more likely than not unwilling to make.  That does not mean that Olson’s basic argument won’t prevail, as we’ve seen time and time again.

However, it is an important reminder that the unique power of the Supreme Court to cast aside democratic results should not be taken lightly or left to nebulous notions of cultural shifts.  Presumably, the democratic process is responsive to such shifts.  There’s nothing to indicate otherwise, and, in fact, recent history merely underscores that point.

In our overly-egalitarian, narcissistic world in which the legal opinions of Facebook friends who never attended law school are given equal stature with those of noted constitutional scholars, I can understand why it’s so easy for some to dismiss Scalia.  A Twitter search for tweets containing the word “Scalia” turns up an angry, bile-filled stream of comments, many of which emanate from people not astute enough, for example, to discern that the Borowitz Report is satire.

Recent news items on Scalia reveal the usual hatchet jobs from outlets like Mother Jones or Huffington Post or the typical slanted reporting from mainstream outlets (which looks very similar to the former, actually).  A Washington Post piece timed to publish with yesterday’s oral arguments extends the argument to connect Scalia directly to the Republican Party’s recent electoral woes, calling him yet another “albatross” and further attempting to discredit him.

He will continue to be assailed by those who believe strong feelings about a topic are a valid substitute for scholarship.  Scalia will never win any social media popularity contests.  Or mainstream media popularity contests, for that matter.  Not that he would ever give a damn about that.

The fact is that many, many people (but not all) who comment on Justice Scalia know little-to-nothing about the Constitution.  The points that I discuss above are lost on them.  They see Scalia’s questions during oral argument as a genuine misunderstanding of how constitutional interpretation works (as if they know better than he).

The presentation by Scalia’s harshest opponents is that he is simply a bigot, or, at best, a conservative ideologue whose views need not be entertained as serious or intellectual.  To them, the Constitution is merely an instrument through which their policy preferences may be enacted instantaneously without the inconvenience of resorting to the democratic process on a jurisdiction-by-jurisdiction basis.  Scalia just won’t do the right thing and get out of their way, and they despise him for that.

He represents the ideology they wish to demonize, and, by extension, the political party they openly disfavor.  Moreover, he dares to be outspoken and even arrogant in a way that would make him a media darling were he a proponent of judicial activism instead of its most prominent critic.  When he authors an opinion like the one in that 5-4 decision yesterday, joining with the “liberal” justices in the majority, that fact is muted in the media because it doesn’t fit their simplified “Scalia BAD!” narrative.

The truth is that he is not a monster, and certainly not a dullard.  He is a principled, brilliant jurist, and one of the more consistent in the Court’s history.[5][6]  Scalia’s position on judicial philosophy is essentially my own, which is as follows: The Constitution requires certain things.  It does not require as many things as people think.  Specifically, it does not require progressivism, libertarianism, or capitalism.  It does not require “Christian values,” nor does it require “social justice.”  People and legislatures are left to their own devices to craft a society as they see fit, whether that means guaranteeing everyone health care or legalizing assisted suicide, or both, or neither.

The fact that those people and legislatures sometimes choose to craft a society that is contrary to the one their opponents would strongly prefer does not mean that the Constitution requires that the Court alter the society to match the opponents’ wishes.

Justice Scalia (and most of the other current justices) understand this point.  But an ever-shrinking portion of our general public—especially the run-of-the-mill Facebook slacktivist—fails to do so.  More troubling is that much of the media, despite having no legal training, are only too quick to condemn a gifted mind over matters which they don’t fully understand.

When he’s gone, his critics will rejoice at the opportunity to shovel rhetorical dirt (or worse) on his coffin.  But those who truly understand his philosophy, even if they disagree with it, will be able to see the purity and consistency of same.

– – –

For an older, less-confrontational, and (thankfully) shorter take on Scalia’s philosophy, see this New York Times opinion piece from 2006.

________

[1] To be fair, from Olson’s perspective, it matters not when the law became unconstitutional, only that it is now.

[2] I should note here that both the EPC and DPC arguments are in play.  The Court could find that there is a substantive DPC right to gay marriage without adjusting the level of scrutiny applicable to homosexuals.  Because the right in play would presumably be a “fundamental” right, that would kick up the scrutiny level without having to reach the question of whether gays should be entitled to strict scrutiny at all.

[3] This outcome will leave Facebook hacks of all political stripes to complain about the Court, which should be customarily unbearable.

[4] That very point has been raised by many same-sex marriage advocates, and was raised by Justice Kagan today as well.  I understand what those who raise it are trying to do, but I think it’s a little disingenuous.  Under ordinary circumstances, laws aren’t required to be that narrowly-tailored.  Again, if we’re in strict scrutiny land, it’s a different story.  Normally, however, a state would never be required to prove that a law that excludes one class because of its intended consequences exclusively includes the target class.  It would be enough to say that homosexual couples are not “potential procreators,” and heterosexual couples are, even if some cannot procreate in fact.

[5] Although even he sometimes strays.  I still have a hard time reconciling his reasoning in R. A. V. v. St. Paul with Virginia v. Black.  I am undoubtedly biased because my mentor was counsel in the latter case, but I believe Black to be wrongly decided.

[6] In fact, the biggest difference I notice between Scalia’s critics who have a legal education and his critics who do not is that the former group begrudgingly grits their collective teeth and admits that Scalia has an excellent legal mind, even where they strongly disagree with his philosophy.  On the other hand, laypeople make the mistake of conflating legislative arguments and judicial ones, a problem that I discussed a couple of weeks ago.  They are also ignorant of Scalia decisions that actually support positions they like.  He instead only pops up on their “radar” when he is on the “wrong” side.  On top of that, they don’t understand that a justice using an analogy isn’t the same thing as equating two things, which also raises their ire.  All of that leads to them attacking the intelligence of someone who may literally be the most purely intellectually gifted justice of the past 40 years, if not longer.