Being on the wrong side of history is a dirty job, but someone's gotta do it. Credit: Kevin Tanaka/Sun-Times Media

An essay posted the other day on the New Republic‘s website placed Antonin Scalia in not one pantheon but two. There’s the pantheon of Supreme Court justices such as Holmes and Cardozo, who “craft their words with brio, force, and wit.” Scalia’s “sneering tone” makes his dissents “hugely entertaining even where they are not rhetorically persuasive.” And there’s the literary pantheon. For Scalia possesses the “reactionary imagination” of a Yeats, Proust, Eliot, or Waugh. He shares with these “great Tory modernists . . . a terrible sense of longing, a palpable feeling for the world we have lost.”

The writer, Jeet Heer, then tacks on a conclusion he’s done nothing to prepare us for: “It’s precisely those qualities that make Scalia so politically reprehensible that also make him a great legal writer.”

Apparently Scalia is so politically reprehensible the point doesn’t have to be argued. It’s something everyone simply knows. Scalia did write dissents last week in two monumental cases—Obamacare and gay marriage—that were decided in favor of the good guys. (My good guys, that is, and yours.) But if Scalia’s on the wrong side of history, well, someone has to be. Change no one has a problem with probably isn’t change.

The problem seems to be that Scalia voices his displeasure too gleefully and too well. I suppose Heer would have said, if he’d bothered to make his case, that there’s nothing wrong with a “terrible sense of longing”—hell, we all know what that’s like. But if you’re a judge and you let it rule your jurisprudence, you’re a danger to society and the law.

Heer didn’t mention and apparently hadn’t read yet Scalia’s notorious dissent to the gay marriage ruling. Reprehensible? Some would say so, but not I. To me it’s a belligerent but harmless piece of writing, a magnificent tantrum. The target of Scalia’s venting isn’t gay marriage—a matter he insists is “not of special importance to me” (who believes him?)—but the Supreme Court itself. And I don’t mean the Supreme Court institutionally. Scalia goes after this Supreme Court, the one composed of himself and his eight colleagues. We’re illegitimate, he says. Justice Clarence Thomas joined his dissent. I’m surprised anyone did.

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the federal judiciary is hardly a cross section of America. Take, for example, this court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast states. Only one hails from the vast expanse in-between. Not a single southwesterner or even, to tell the truth, a genuine westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

This isn’t an original critique. I’ve read it before, usually after decisions that found Scalia in the majority, such as the ones knocking down campaign finance limits or invalidating gun control laws. But it’s astonishing from a justice writing an opinion. Scalia gives himself an out by declaring our “strikingly unrepresentative” court OK so long as it behaves itself—which I’m sure he thinks it does whenever it agrees with him. But his point is sound: the court doesn’t remotely reflect the nation—or even the legal profession.

Scalia’s dissent isn’t an ad hominem attack on Anthony Kennedy, the justice who wrote the majority opinion. Any writer would tell you it’s worse: It ridicules Kennedy’s craftsmanship. It snickers at his “mummeries and straining-to-be-memorable passages” and at its “showy profundities,” which are so often “profoundly incoherent.” (At one point Scalia comments parenthetically, “What say?” at another point, “whatever that means”). Kennedy began his opinion by writing, “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.” Scalia says in a footnote that if he ever joined an opinion beginning that way, “I would hide my head in a bag.”

Though I’ve spotted no apologists for Kennedy’s ungainly opening, his conclusion has been hailed for its eloquence. Kennedy wrote:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Scalia had nothing to say about this. However Justice Thomas, in a separate dissent, took it on. “Human dignity,” he explained, “cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.” In other words, if you feel yourself stripped of dignity, it’s no one’s fault but your own. Yet Scalia joined in this dissent without hiding his head in a bag.

My regret about Scalia’s contemptuous eloquence is that it reacted to the wrong opinion. Kennedy might have written the last word on the constitutionality of gay marriage, but not the first word—the Supreme Court intervened after several appellate courts had separately addressed the question. And not the best word. That, in my view, was written in Chicago last year by the Seventh Circuit’s Richard Posner—Scalia’s bete noir.

Posner may not be as quotable (or suffused with Proustian longing) as Scalia, but he writes as incisively, and with greater power to influence (some would say intimidate) other judges into agreeing with him. Posner cut to the chase. Prohibitions against gay marriage in Wisconsin and Indiana (these were the cases before him) did harm to gay couples who could not marry. Ending those prohibitions would benefit those couples but do no harm to anyone else that the court could take seriously. To underscore the principle involved, Posner quoted John Stuart Mill in a way that suggested he’d actually read him.

Mill argued that neither law (government regulation) nor morality (condemnation by public opinion) has any proper concern with acts that, unlike a punch in the nose, inflict no temporal harm on another person without consent or justification. . . . To be the basis of legal or moral concern, Mill argued, the harm must be tangible, secular, material—physical or financial, or, if emotional, focused and direct—rather than moral or spiritual. . .

Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts.

I commented at the time on the Bleader that Posner mousetrapped Scalia: he’d either have to agree with Posner (unthinkable) or contradict himself. Dissenting from a 2003 decision that invalidated Texas’s antisodomy laws, Scalia had warned that the ruling “dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions.” If that distinction could no longer be made, Scalia would either have to vote for legal same-sex marriage when the time came, or oppose it without offering a legal justification.

Well, the time just came. Chief Justice John Roberts, in his dissent, addressed what he called the “harm principle,” said it had more to do with philosophy than law, and declared that due process wasn’t written into the Constitution with John Stuart Mill in mind. Scalia, alas, ignored harm, ignored Mill, ignored Posner, and ignored what he’d written in 2003. Instead, he simply called out the Court for committing a “judicial Putsch.”

Posner, in turn, ignored Scalia—and also Thomas. Reviewing the Supreme Court decision on Slate, Posner reiterated Mill’s argument and declared, “I go further than Mill. I say that gratuitous interference in other people’s lives is bigotry.” Unless same-sex marriage could be shown to actually harm people, the state should mind its own business, Posner said, this being a “rather obvious point” the dissenting justices missed. He called all four dissents “very weak” but commented only on the ones by Roberts and by Justice Samuel Alito.

Posner did allow that Kennedy’s majority opinion might profitably have been ” longer on facts and shorter on sonorous quotations.” To that extent he agrees with Scalia, who in one of his several passages putting Kennedy in his place, wrote, “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”

In other words, I can write what I please but you can’t. Scalia isn’t one of those slippery justices who shade their beliefs, craft majority coalitions, and insinuate their prejudices into law case by case. Scalia lets it all hang out and doesn’t care who agrees. He has the soul of an op-ed columnist. He ain’t reprehensible; he’s my brother.