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Mr. Justice Scalia Dissents
Mr. Justice Scalia, dissenting:
Published in General, Law, MarriageIf, 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.
Scalia all but called us a Judicial Tyranny.
I’ve felt thatcher for years.
Clearly, a shot at Kennedy. Is he implying that Kennedy knew better and ought to be ashamed?
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.
Scalia is right.
The theater of the absurd these days.
Therapeutic to read?
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.
Justices often quote their previous dissenting opinions in future opinions.
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.
I’m resisting the urge to comment. I want credit for that.
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?
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.
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.
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.
You’ve done what for years?!?!
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.
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,
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.
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.
Ha. Hope springs eternal.
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.
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.
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!
What were those subsets?