One of the most secretive institutions in our republic is not the CIA or the National Security Agency, but rather the Supreme Court. The nine jurists, appointed for life, meet in private to discuss and vote on cases that were presented to them months earlier. There may be a few clerks and secretaries in the room. but they are sworn to secrecy; any leaks to the press would end their careers.
From the over the top reactions of the four justices who formed the minority in the gay marriage decision that meeting must have been one hell of a shouting match. Justice Kennedy, a Catholic conservative, wrote the majority opinion and in a closing paragraph that will be quoted for years to come talked about the dignity of married life as he enshrined marriage as a constitutional right, while the dissent of Justice Scalia, a Catholic conservative, went ballistic and personal as he lamented the end of democracy, a wholesale misreading of the constitution and the liberal elitism of the majority. Reading Scalia’s dissent reveals a sore loser and the reactions of a bully who didn’t get his way.
Gay marriage is now law but the harsh words and the personal animosity expressed by Scalia and also Chief Justice Roberts suggests that the collegial and non-political character of the high court may be in the past. Expect that the justices on both sides of the issue of gay marriage will go public in the coming days and enter the debate about this new right and the traditional concept of marriage. Even worse, conservative politicians have promised to make the Court’s decision a campaign issue. In a manner similar to the reactions of the Warren Court in the 1950s and 1960s which supported desegregation and civil rights, conservatives running for president are already talking about impeachment proceedings against the majority and a constitutional amendment to overturn the decision. Those efforts are a complete waste of time.
Whenever the Supreme Court expands rights or re-interprets the words of the Constitution and its amendments critics will condemn judicial activism, except of course when the expansion and re-interpretation suits their agenda and ideology. Judicial activism is nothing more than defining the law of the land to suit changing circumstances and mores; or as the textbooks say “making the constitution a living document.” The constitution was written over 200 years ago and for those like Justice Scalia who hold to the view that what was written by James Madison and others can never change or be updated are judicial hypocrites-witness the campaign finance rulings penned by conservatives on the Court which defined financial contributions a form of free speech. Madison, I am sure Madison turned over in his grave with that tortured logic.
Thank goodness the Supreme Court will not reconvene until October and the Congress is out of session until the fall. Most importantly, the so-called failure of democracy that Scalia crows about in his dissent fails to take notice of the fact that now over 60% of Americans support gay marriage and see the sanctioning of this union as a right.
My humble advice to Justice Scalia and his three other dissenters is to move on, get over it. Love won out.