Mr. Justice Scalia Dissents

 

scaliaMr. Justice Scalia, dissenting:

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. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

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  1. Kozak Member
    Kozak
    @Kozak

    Scalia all but called us a Judicial Tyranny.
    I’ve felt thatcher for years.

    • #1
  2. user_836033 Member
    user_836033
    @WBob

    Clearly, a shot at Kennedy.  Is he implying that Kennedy knew better and ought to be ashamed?

    • #2
  3. Nick Stuart Member
    Nick Stuart
    @NickStuart

    Can anyone give an example of a dissent making any difference at all at any time? Seriously what’s the point?

    • #3
  4. FightinInPhilly Coolidge
    FightinInPhilly
    @FightinInPhilly

    Nick Stuart:Can anyone give an example of a dissent making any difference at all at any time? Seriously what’s the point?

    I’ve wondered this too. Can a dissent be cited for overturning a prior decision? It seems like a honorable mention award.

    • #4
  5. MarciN Member
    MarciN
    @MarciN

    Scalia is right.

    The theater of the absurd these days.

    • #5
  6. Rachel Lu Contributor
    Rachel Lu
    @RachelLu

    FightinInPhilly:

    Nick Stuart:Can anyone give an example of a dissent making any difference at all at any time? Seriously what’s the point?

    I’ve wondered this too. Can a dissent be cited for overturning a prior decision? It seems like a honorable mention award.

    Therapeutic to read?

    • #6
  7. Crow's Nest Member
    Crow's Nest
    @CrowsNest

    FightinInPhilly:

    Nick Stuart:Can anyone give an example of a dissent making any difference at all at any time? Seriously what’s the point?

    I’ve wondered this too. Can a dissent be cited for overturning a prior decision? It seems like a honorable mention award.

    A dissent is what a man of conscience does when he can’t change something but refuses to submit to it. And when he refuses to submit to it, he refuses yet again to be characterized by someone else’s words. He defines his own refusal to submit, and in so doing, in the hopes that it will be preserved for posterity, he hopes that there is another man out there who will see the nobility in what he’s done.

    • #7
  8. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    Justices often quote their previous dissenting opinions in future opinions.

    • #8
  9. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Look at the bright side Peter… no more Pride parades.

    • #9
  10. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:Look at the bright side Peter… no more Pride parades.

    Tommy, I see you quipping in all of these threads, but you have argued here that there is a right to marry for SSM.

    Do you agree with the majority today? If not, what grounds do you think they should have used to grant the right to SSM you have argued for in the past?

    • #10
  11. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    BThompson:

    Tommy De Seno:Look at the bright side Peter… no more Pride parades.

    Tommy, I see you quipping in all of these threads, but you have argued here that there is a right to marry for SSM.

    Do you agree with the majority today? If not, what grounds do you think they should have used to grant the right to SSM you have argued for in the past?

    I’m well misunderstood.  My position on SSM is admitted by me to be an odd one not shared even by a significant minority.

    I abhor the position of both sides.  It’s earned me the right to quip no matter what happens.

    • #11
  12. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    I’m resisting the urge to comment. I want credit for that.

    • #12
  13. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:I abhor the position of both sides. It’s earned me the right to quip no matter what happens.

    You avoided the question, Tommy. Is there a right to SSM?

    If so, what are the legal grounds of the right and how should that right be honored?

    • #13
  14. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    BThompson:

    Tommy De Seno:I abhor the position of both sides. It’s earned me the right to quip no matter what happens.

    You avoided the question, Tommy. Is there a right to SSM?

    If so, what are the legal grounds of the right and how should that right be honored?

    I really have to go into this now?  Haven’t we danced in this hall a bunch of times?

    • #14
  15. user_252791 Member
    user_252791
    @ChuckEnfield

    I know I’ve read about several instances where dissents were later cited in majority opinions.  Unfortunately, the only one I can recall is a mixed bag.  Justice Brandeis outlined the case for a constitutional right to privacy in the late ’20’s that was later used in a majority decision to end warrantless wiretaps.  Of course we all know how the right to privacy has been used since.

    I found an article from the Duke Law Journal which spends 50 pages justifying this particular purpose for dissenting opinions.  I don’t recommend reading the whole article unless you’re interested in an extremely academic approach to the question, but the introduction covers a number of possible reasons to publish dissenting opinions.

    • #15
  16. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:I really have to go into this now? Haven’t we danced in this hall a bunch of times?

    You don’t have to do anything, Tommy. From your quips, you seem to think this is a flawed decision. From our previous “dances” I would have assumed you would have approved of this decision. I’m asking for clarification.

    Dance or not, Tommy. I’m just confused by your behavior.

    • #16
  17. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    One of my law school professors, always after saying the word dissent, would hold up his finger and say, “…which is interesting reading… and pause.

    His point was that they don’t mean a thing to the law.

    Just interesting reading.

    • #17
  18. user_2967 Member
    user_2967
    @MatthewGilley

    Kozak:Scalia all but called us a Judicial Tyranny. I’ve felt thatcher for years.

    You’ve done what for years?!?!

    • #18
  19. Frank Soto Contributor
    Frank Soto
    @FrankSoto

    FightinInPhilly:

    Nick Stuart:Can anyone give an example of a dissent making any difference at all at any time? Seriously what’s the point?

    I’ve wondered this too. Can a dissent be cited for overturning a prior decision? It seems like a honorable mention award.

    Dissents are written for law students.  Meaning tomorrow’s lawyers and judges.  They are indeed valuable.  You would not be wise to underestimate the number of conservative legal minds who came to their way of thinking because of the wit of Scalia’s dissents.

    • #19
  20. user_3467 Thatcher
    user_3467
    @DavidCarroll

    Why bother with a dissent?  According to a speech by Justice Ginsberg reprinted in the Minnesota law Review, a well written dissent internally may convert those on the fence to the dissenters view.  She also said,

    Describing the external impact of dissenting opinions, Chief Justice Hughes famously said: “A dissent in a Court of last resort is an appeal . . . to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

    • #20
  21. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    BThompson:

    Tommy De Seno:I really have to go into this now? Haven’t we danced in this hall a bunch of times?

    You don’t have to do anything, Tommy. From your quips, you seem to think this is a flawed decision. From our previous “dances” I would have assumed you would have approved of this decision. I’m asking for clarification.

    Dance or not, Tommy. I’m just confused by your behavior.

    Ok but I’ll keep it brief.

    My preferred position:

    Government never has a word to say about marriage formation.  People form their own marriages.  The government can have a recording requirement as we do for deeds.  But the people tell the government when they are married.  The government can maintain its role in dissolution.   This way I get married in my church, the atheists can use a judge and gays can use a judge, a church that takes them or whatever internet minister is fashionable online these days.

    But we don’t have my system.  We have a system where government took over formation of marriage in 1753.  After doing that, they slowly attached all sorts of articulations to it – taxes, insurances, hospital visitation, etc.

    It’s these artificial attachments that cause a problem constitutionally.  If you are going to set up society so that those things need to be available to all equally, then you have to equalize marriage if that’s they way to get to them.  So I agree with the equal protection part of the decision, but only as part of a flawed paradigm of government control  I reject.  And I’m not surprised.  I was published 12 years ago on the equal protection argument the Court adopted today.

    This is why I don’t like both sides:  I told your side to keep marriage in the hands of government meant that one day you’d face a government that used that power against you.  You didn’t listen.  Look at you now.   I told the other side they’d be better off with no government approval than government approval, because even if you get it, it’s precariously perched.  It can still be taken away.  And why do you want to side with those you see as your oppressors?  I’d rather take away my oppressor’s power than gain his approval.

    So there you have it – an army of one.  I suspect no one agrees.

    • #21
  22. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:So there you have it – an army of one. I suspect no one agrees.

    Only because your “admonitions” are completely incoherent.

    Legislatures can decide that things which are not equal don’t require equal protection and design institutions which favor certain circumstances which are different from others without any threat to equal protection.

    Your position begs the question of where equality lies.

    • #22
  23. user_352043 Moderator
    user_352043
    @AmySchley

    Tommy De Seno:Look at the bright side Peter… no more Pride parades.

    Ha. Hope springs eternal.

    • #23
  24. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    BThompson:

    Tommy De Seno:So there you have it – an army of one. I suspect no one agrees.

    Only because your “admonitions” are completely incoherent.

    And you’ve done such a good job in articulating yours you lost today…

    • #24
  25. BThompson Member
    BThompson
    @BThompson

    Tommy De Seno:

    BThompson:

    Tommy De Seno:So there you have it – an army of one. I suspect no one agrees.

    Only because your “admonitions” are completely incoherent.

    And you’ve done such a good job in articulating yours you lost today…

    So, “I win” makes something right?

    I suspect you disagree with many winning court decisions. So your response here is simply argumentum ad populum. Hardly persuasive, even to yourself I would think.

    BTW, I elaborated on the post you’ve quoted here.

    • #25
  26. Dick from Brooklyn Thatcher
    Dick from Brooklyn
    @DickfromBrooklyn

    Tommy De Seno:

    BThompson:

    Tommy De Seno:I really have to go into this now? Haven’t we danced in this hall a bunch of times?

    You don’t have to do anything, Tommy. From your quips, you seem to think this is a flawed decision. From our previous “dances” I would have assumed you would have approved of this decision. I’m asking for clarification.

    Dance or not, Tommy. I’m just confused by your behavior.

    Ok but I’ll keep it brief.

    My preferred position:

    Government never has a word to say about marriage formation. People form their own marriages. The government can have a recording requirement as we do for deeds. But the people tell the government when they are married. The government can maintain its role in dissolution. This way I get married in my church, the atheists can use a judge and gays can use a judge, a church that takes them or whatever internet minister is fashionable online these days.

    But we don’t have my system. We have a system where government took over formation of marriage in 1753. After doing that, they slowly attached all sorts of articulations to it – taxes, insurances, hospital visitation, etc.

    It’s these artificial attachments that cause a problem constitutionally. If you are going to set up society so that those things need to be available to all equally, then you have to equalize marriage if that’s they way to get to them. So I agree with the equal protection part of the decision, but only as part of a flawed paradigm of government control I reject. And I’m not surprised. I was published 12 years ago on the equal protection argument the Court adopted today.

    This is why I don’t like both sides: I told your side to keep marriage in the hands of government meant that one day you’d face a government that used that power against you. You didn’t listen. Look at you now. I told the other side they’d be better off with no government approval than government approval, because even if you get it, it’s precariously perched. It can still be taken away. And why do you want to side with those you see as your oppressors? I’d rather take away my oppressor’s power than gain his approval.

    So there you have it – an army of one. I suspect no one agrees.

    I agree with you. We should have banned “straight” marriage – at least as an instrument of government.

    • #26
  27. BThompson Member
    BThompson
    @BThompson

    Dick from Brooklyn:I agree with you. We should have banned “straight” marriage – at least as an instrument of government.

    No, we should have reaffirmed the purpose of marriage and not conceded the silly romantic ideal which has been increasingly confusing society for the past couple of centuries.

    Before the advent of the pill, biology acted as something of a bulwark against the silly, immature idea most now hold toward marriage. Once we thwarted biology, all bets were off.

    • #27
  28. user_645127 Member
    user_645127
    @JenniferJohnson

    Dick from Brooklyn:I agree with you. We should have banned “straight” marriage – at least as an instrument of government.

    Our country has already banned subsets of “straight” marriages on two occasions. Are you arguing that we erred to remove those bans?

    • #28
  29. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Jennifer Johnson:

    Dick from Brooklyn:I agree with you. We should have banned “straight” marriage – at least as an instrument of government.

    Our country has already banned subsets of “straight” marriages on two occasions. Are you arguing that we erred to remove those bans?

    Jennifer! Sharp cookie!

    • #29
  30. Tommy De Seno Contributor
    Tommy De Seno
    @TommyDeSeno

    Jennifer Johnson:

    Dick from Brooklyn:I agree with you. We should have banned “straight” marriage – at least as an instrument of government.

    Our country has already banned subsets of “straight” marriages on two occasions. Are you arguing that we erred to remove those bans?

    What were those subsets?

    • #30

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