HERE IS an opening excerpt from Justice Antonin Scalia’s dissenting opinion in the Supreme Court ruling on DOMA. Scalia is already the subject of a blizzard of scoldings and reprimands from the mainstream press, which supports the decision but cannot abide a critic. Scalia is Public Enemy No. 1. If you think this ruling will mitigate animosity toward those who oppose normalization of homosexuality, think again. It will only heighten this intolerance.

Justice Scalia writes:

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

The Court is eager — hungry — to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role. The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.” Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.” Ibid. (internal quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role. [cont.]

He later writes that the ruling foreshadows the federal banning of all state laws prohibiting homosexual “marriage:”

My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

And he responds to the charge that the dissenting opinion demeans homosexuals (a weak argument for surely it does rightly demean homosexuals by saying they can never join with each other in “marriage.”) To the contrary, defenders of marriage have been declared “enemies of the human race.” He writes:

To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

— Comments —

Henry McCulloch writes:

Is Scalia trying to atone for his inexcusable vote against Arizona last week? Dissents may make for great reading, but they are the vented frustration of the powerless.

Josh F. writes:

For the radical autonomist, objective supremacy does not exist. So today’s decision was not an act of “judicial supremacy,” but rather, an act of judicial degeneracy. This same rule applies to wherever one reads the “supremacist” label invoked whether it be from conservatives or liberals. So for example, the MRA speaks of “females supremacists,” the neocons speak of “Islamic supremacists” and the SPLC speak of “white supremacists” all the while each group is actually signifying female, Muslim and white degenerates, respectively.

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