The Supreme Court has issued a series of rulings that, effectively, guarantee a right to marriage for same-sex couples nationwide. The ruling passed narrowly, 5-4, with each of the dissenting justices issuing an opinion in defense of their stance. These opinions had their highlights - I almost dedicated this blog to Roberts' claim that the Court is ordering the transformation of an institution that "formed the basis of human society" for the "Kalahari Bushmen" and the "Aztecs" (luckily those people got to experience better transformations, like global European colonization). But then I read this quote by Justice Antonin Scalia:
"A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
3) So...did you just wake up today, years deep in your career, and realize what it is that you do for a living?
Imma come back to that. But first, let me be fairer to Scalia, as he does go on to give something of a defense of this claim against the above objection. He claims that the proper role of the Court as judges is to judge whether or not the "American people" ever ratified a section of the Constitution that can be properly understood as providing protection for same-sex marriage. On a plausible reading of the relevance of this claim, he can be taken to believe the following: The Constitution should be interpreted at least in part by reference to the intent of those who made it, presumably either by i) appealing to interpretations of the intent those at the original Constitutional Congress (as representatives of 'the people'), ii) interpretations of the intent or meaning of the lawmakers who successfully ratified Constitutional amendments, as representatives of the people changing the Constitution according to a (Constitutionally approved) procedurally justified amendment process or iii) interpretation of the intent or meaning of the lawmakers who made the current laws or judges who made legal precedents (should the law / precedent itself be Constitutional and relevant to adjudicating a particular case). Scalia seems to think there is no room in this model of what judges are supposed to do for more self-consciously reconstructivist reinterpretations of the Constitution (maybe that's the stuff of 'judicial activism' or 'legislating from the bench').
Scalia is right, I think - that model doesn't have a lot of room for judgements centrally about what the intent of Constitution makers, law makers, or previous judges/justices ought to have been. I'll call judgements of that kind reconstructive. However, I'm of the opinion that judgements of the kind he is after are either impossible or a shitty idea. Let's separate the cases: up first is impossibility of successful interpretation. For the Supreme Court to perform their role as judges in a purely interpretive fashion, we can skip the complications about what they would have to know about the framers / Congresspeople to do this effectively and go straight for the money: for there to be an interpretive possibility of this kind, there would have to be something that the Framers could possibly have thought about a given piece of law. But the laws we create are responsive to our current circumstances, which are shifted by social, technological, and other innovations. It is utterly conceptually confused, I suspect, to think that the Framers could have an intent of any recognizable kind about how the Constitution was meant to govern the Internet, for example, because the thing (the Internet) about which we ask the interpretive question is so far removed from anything that could have existed in their time that the question is meaningless.
We could try to view the justices as interpreting an Internet law against ii or iii, but that just relocates the same worry - presumably, lawmakers attempt to make laws that successfully discharge the duties acquired by/within the confines of their Constitutional powers, and their success in doing this is typically the thing at issue for a case that reaches the SCOTUS. On the basis of what do we decide that they've succeeded? Presumably, if their interpretation of some other law, amendment, or Article of the Constitution should in fact let them oversee the Internet in the way the law proscribes - and we know that they've done that based on how we reconstruct what the law actually says in terms of other shit that there is Constitutional language and legal precedent for. If we decide that the Internet should be centrally understood as a mode of commerce then that tilts things towards one kind of ruling - if we decide to centrally consider it as a mode of assembly, it tilts toward another. No ruling can take place in the absence of that extra-Constitutional reasoning. Sounds like reconstruction to me, Scalia.
But let's say the above arguments fail and it is possible to find some principled way of judging even new features of the world against some relevant set of people's intent. Have you, like, read US history at all? That gets us into the second kind of possibility: hey, maybe that's a shitty idea. I recall the words of the 1857 majority decision on Dred Scott v. Sanford (which was decided 7-2!):
“In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument...They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."
Here's your problem, Scalia - Justice Taney was 100% correct. You see, slavery is just the worst of an awe inspiring amount of kinds of inequality (forming systems whose names are prominently featured on today's thinkpieces) that make it the case that the laws in this country, whatever the procedure for instituting them, are created in response to the interests of an incredibly, undemocratically small amount of people - and, as with the Founders and that whole white supremacist heteropatriarchy thing (damn, I wasn't going to name any of the systems!), we have to face the the very real and consequential possibility that some in this small group are assholes. Unless you take the sentences that emerges from the political contests among this insular group to be correctly thought of as the "American people" whose will you think of yourself as Ouijaboarding in your day job, you should probably concede that judgements following your model are likely to play a reinforcing role in the systems-that-I-won't-name-today.
But, for that very same reason, Scalia has a point here, as Ezra Klein well noted over at over at Vox. Nine people do get to decide, in a likewise incredibly undemocratic fashion, critical aspects of the lives of millions of people living in America (though, if my arguments thus far are correct, this simply is the job description, not something new that results from justices having the gall to try and do this as morally responsibly as possible). This ruling, as all Supreme Court rulings, was the culmination of a Russian Roulette game we play every time a case reaches the Court. The chamber is reloaded every time a Supreme Court justice gets sick or ages, by whichever party made the right set of empty promises and surgical uses of propaganda in the last election cycle to be in power when it happens. If you ask me, that's no way to run a country.
(But what do I know? I wonder about whether or not tables really exist for a living.)