Windsor: A Dia-Tribe

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Windsor is too transparently absurd,  insufferably pc, and duplicitous for words. Justice Scalia’s dissent says so. It is contemptuous, vituperative, and whatever other tsk-tsk adjective the guardians of our public discourse will heap on it. But somebody—somebody with a megaphone—had to say it.

Prof. Dr. Tribe is appalled, and has issued his demarche and media instructions here. “Justice Scalia,” he laments,  “couldn’t resist the temptation to use the occasion to insult the Court’s majority, and Justice Kennedy in particular, in essentially ad hominem (and ad feminem) terms.” (Regardless of what you think of LT’s legal scholarshipnever trust his Latin.) The good professor’s critique tells us more about his mindset than Justice Scalia’s.

 Tribe chides Scalia for addressing the merits at all:

To accuse the majority of arrogance and then reach the merits after saying that the Court lacks jurisdiction to address the case requires no small dose of chutzpah.

There seems to be a lot of chutzpah around. Justices across the board quite often respond to a majority’s merits ruling, in cases where they would decline jurisdiction. (It’s hard to see what else they’re supposed to do.) Professor Tribe must have taught some of the cases; if not, I’ll supply cites on request. Moving along:

Justice Scalia didn’t so much as consider the possibility, one embraced not just by today’s majority but by no less a jurist than Michael Boudin as Chief Judge of the First Circuit in his earlier decision invalidating DOMA’s Section 3 on very similar grounds, that considerations of federalism might point to a particularly rigorous examination of the purported justifications for a measure like Section 3.

Ooh: a chief judge. Arguments from authority are evidently ok (only arguments ad feminem are not). But on to substance, sort of:

That the majority was relying not on principles akin to those that led to Lochner and its progeny but, rather, on what the majority claimed– namely, a combination of equal protection principles and precepts of federalism – a combination textually at home in adjudication under the Due Process Clause of the Fifth Amendment, cannot have escaped Justice Scalia’s keen mind. So they [who, they?] must simply have escaped his word processor, mind notwithstanding.

In a moment, Professor Tribe will accuse Justice Scalia of “snark.” For now, behold his fine encapsulation of Windsor: “a combination of equal protection principles and precepts of federalism [that is] textually at home in adjudication under the Due Process Clause of the Fifth Amendment.” Wow.  Most likely, this hornbook teaching of Windsor struck Justice Scalia’s mind as completely ludicrous. It so strikes much duller minds, such as mine.

(Randy Barnett has made a valiant effort to explain Justice Kennedy’s “novel” argument and his “marriage of federalism and  liberty.” But the more it’s explained to me, the less I comprehend it. If some states [One/ Two? Ten?] create a “liberty interest” that has to do with “dignity,” federal law is subject to heightened scrutiny?? I think I know when and how the feds may “borrow” state law; am I now supposed to think that sometimes they must do so, and could someone explain the occasions on which that “novel” argument is “textually at home” in the Fifth Amendment?? Maybe I’ll get it if someone sets it to music. I respectfully request something that (a) captures Windsor ‘s spirit and (b) is commensurate with my unkeen mind, like this tune.)

Back to Professor Tribe:

Justice Scalia faulted the majority with having inexcusably accused the Congress that enacted DOMA and the President that signed it of having “hateful hearts” when the majority in truth did no such thing. To say that only anti-gay animus, conscious or otherwise, could coherently account for a measure like Section 3 is not to accuse those who enacted or signed the measure of acting out of homophobic animus.

William Jefferson Clinton (who signed DOMA into law) is off the hook: phew. Question, though:  Section 2 of DOMA compartmentalizes the gay marriage question along state lines. Can one “coherently account for” that provision as a federalism-protective measure; or is it, too, a product of an “animus” that no one may have had but that, like a devilish spirit, worked behind the legislators’ backs to produce DOMA?  In other words, what happens when Windsor’s federalism argle meets its liberty-versus-animus bargle and the odd “marriage” ends, as it must, in divorce? (The same question arises, of course, over state laws and constitutions that prohibit gay marriage.) The justices who concluded this “marriage” had their fingers crossed behind their backs; they’re betting that the smitten wedding audience will pretend not to notice; and they know, and they know that everyone else knows, that they will divorce this fake union on their own terms, in their own good time.

Nothing wrong with that, according to Professor Tribe. The fault is with the wedding guest who protests that the whole thing is a charade (I quote at length because you have to read to believe):

Justice Scalia snarkily said that his fellow Justices showed “real cheek” when they assured the nation that the constitutionality of state laws banning same-sex marriage was not before the Court in this case when, in Scalia’s view, those state laws could not be upheld consistent with the premises of Windsor. But surely Justice Scalia recognizes that the implications of carefully cabined precedents like Windsor is always up for debate, invariably influenced by the spirit of the times in which later stages of that debate reach the Court. Justice Scalia invited “State and lower federal courts” to “take the Court at its word and distinguish away” when others urge that laws barring same-sex marriage at the state level are distinguishable from the DOMA provision that the Court struck down. But, at the very same time, the Justice insisted that any such efforts at distinction would fly in the face of the legal principles underlying today’s decision in Windsor and concluded that, “[a]s far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”’

Where to begin with that tidbit? For starters, calling on state and lower federal courts to treat the Windsor opinion as no broader than it claimed to be even as one charges the Court that penned Windsor with charting an unbreakable path to full same-sex-marriage rights is, at the very least, an exercise in jurisprudential cynicism. Either Justice Scalia expects and wants tribunals beneath his pay grade to shut their eyes to what he regards as the inescapable implications of Supreme Court precedents, or he anticipates that they will, and suggests that they should, follow the logic of those precedents where that logic leads notwithstanding the Court’s suggestions that the issue remains entirely open. Either way, he is contradicting himself.  

Beyond that troublesome cynicism, there is the transparently calculated blurring of the distinction between analysis of where the arc of the law logically points and prediction of where that arc will in fact land. It’s hard not to hear in Scalia’s remarks today an echo of the prediction he made in his equally heated dissent from Lawrence ten years ago – that, having struck down the anti-sodomy law of Texas on the basis that its 2003 its opinion invoked, the Court could not logically stop short of invalidating as an insult to equal dignity and liberty any state law limiting marriage to same-sex couples. When Justice Scalia made that 2003 prediction, he doubtless recognized that it would be quoted back at him in future challenges to such state laws, at which point he doubtless intended to underscore the Lawrence majority’s own insistence that it was not yet resolving the validity of such challenges.  

So too today. In predicting that the opinion joined by the five Justices comprising today’s Windsor majority would invariably lead to the invalidation of state efforts to limit lawful marriage to opposite-sex couples, Justice Scalia was engaging in a bait-and-switch unworthy of so serious and smart a jurist, one who often displays a principled side that even those who dislike his results would be hard-pressed not to admire [violins].

The bait-and-switch of course arises out of the inescapable reality, one that Scalia appreciates as well as anyone, that what the Supreme Court does has always been and must remain a delicate blend of principle and politics. Justice Scalia knows all too well that the decision of whether the time is ripe for federal judges to move forward on a matter as politically, culturally, and religiously explosive as same-sex marriage is impossible for any judge to make as a matter of analytical reason alone. So to say that all we need do is listen and wait for the other shoe to drop is to falsify what Justice Scalia recognizes the world is all about. In the fullness of time, when the nationwide validity of a statewide ban akin to Proposition 8 reaches the Court without the standing problems that enabled the Court to punt on this occasion, if Justice Scalia is still a member of that tribunal, we can all be sure that he will not treat the Windsor majority opinion as controlling precedent for striking down such a ban. To suggest otherwise now is worse than cynical. It is flatly false. And it gives the wrong signal to lower courts, both state and federal. It suggests to them that they ought to feel free to track what the Supreme Court says rather than to fathom, and then do their best to follow, the logic of what it does.

Where to begin, indeed?

Prior to Professor Tribe’s learned discourse, I would have thought that lower courts should not simply “feel free to track what the Supreme Court says” but feel and be bound by it. That, to me, looks like a plausible principle to organize a hierarchical (and federal) judicial system. And there’s a precedent for the proposition that lower courts should follow what the Supreme Court has said and precisely not try to fathom its “signals,” “logic,” or “arc.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989) (Opinion by Kennedy, J., for what that’s still worth.)  I can cite it off the top of my head because it’s been reaffirmed, time and again, whenever lower courts have encountered discrepancies between the Supreme Court’s holdings and its “arc” (for example, in Establishment cases).

I’ll dismount my ConLaw soapbox in recognition of the fact that law has absolutely nothing to do with this case. Rodriguez assumes that you can tell what the Supreme Court has said, and that is intentionally untrue of Windsor (as it was intentionally untrue of Lawrence). Contra Tribem, Windsor is neither a “carefully cabined precedent” nor a reflection of the “delicate blend of principle and politics”—which we demand of all branches and levels of government and which, in this case in particular, the Court had a million good reasons, legal and prudential, to leave to those other, democratic institutions. No: Windsor is a submission of the Court, and the Constitution, to raw, brutal movement politics and the strategic demands of that movement.

I’m not saying that the justices—or for that matter the scholars who have cooperated in this venture and so managed to get on the right side of history—have “hateful hearts” vis-à-vis the Constitution. I’m just saying, nothing else can coherently account for this decision. And on this day of celebration, I ask of my gay, and gay-rights, and gay-rights-supportive colleagues and friends just one thing: will at least one of you stand up and say, “not this way”?