The Continuing Argle-Bargle
In last week's opinion in Obergefell v. Hodges, the U.S. Supreme Court again broke new ground and has taken an action that will be debated for years to come.
It finally used the word "huh?" in an opinion.
This of course was deployed in dissent by Justice Scalia, who just the day before had introduced "jiggery-pokery" and "pure applesauce" (the terms, not the concepts) to the Court's jurisprudence. See "The Argle-Bargle Over This Jiggery-Pokery Is Pure Applesauce" (June 25). While "huh" had appeared in 11 Supreme Court decisions before Friday, in each case that was only because the opinion contained or attached a partial transcript in which someone else had said "huh," "uh-huh," or utterances to that effect. (One of those cases was FCC v. Pacifica Foundation, in which the someone was George Carlin. He said a lot of other things in that transcript that the Court has yet to officially adopt.) Justice Scalia's use of "huh?" last week was the first time a justice has used it in an opinion.
It appears in the paragraph that starts, on page 7 of Scalia's dissent, by saying that the majority's opinion "is couched in a style that is as pretentious as its content is egotistic." It seems a little rude to go after the majority opinion's style as opposed to its reasoning, which is always fair game. (Note that I, by contrast, have chosen to say nothing about its style.) But this does make for entertaining reading.
The "huh?" appears on the next page, as part of a series of rebuttals to statements by the majority that Scalia finds especially perplexing:
Rights, we are told, can "rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)
Emphasis added.
Setting aside whether that sentence is pretentious-something about which, again, I am saying nothing-it does seem to deserve the huh, at least in isolation. The sentence just before that one says this: "The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone." So in context, it's clear at least that the majority is saying something like "rights may evolve over time." Fair enough. But here's some advice if you want to argue in a future case that a right has evolved: don't get up and say you should win because we now have "a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era." The response will be "huh?" or words to that effect.
This paragraph is the bulk of section II of Scalia's opinion, and it's full of gems despite-or maybe because of-the fact that it's completely unnecessary. His main point, like that of Justice Roberts (whose opinion he joined), is that a change like this should be left up to the voters, or maybe a constitutional convention, not handed down by "nine unelected lawyers." But he makes that point perfectly well in the first part of his opinion, so Section II (if not the whole dissent) is just venting.
And it's a fair point, though that's not to say it deserved five votes in this case. But partly because he is venting, the opinion is full of gems both good and bad.
- "I write separately to call attention to this Court's threat to American democracy."
Huh? Again, the anti-democratic point is a fair one, but to call this a "threat to American democracy" when the courts have let the executive branch do whatever it wants since 9/11 is laughable. (I'm laughing right now. Really.) Also, as many others have noted, Scalia has been just fine with nine unelected lawyers (five, actually) making a variety of other decisions that he happened to favor.
- "If ... 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 use of "head in a bag" is another Supreme Court first. (It does appear in one state supreme court decision, but in a very different context.)
- "Who ever thought that intimacy and spirituality [whatever that means] were freedoms?"
Um ... all of us? Granted, those specific words aren't in the Constitution, but neither is "expression," which Scalia has no trouble agreeing is a "freedom." We could certainly argue about what "intimacy" and "spirituality" mean, but it is a little creepy for a justice to ridicule the idea that anybody ever thought we had those freedoms at all.
- "What say? What possible 'essence' does substantive due process 'capture' in an 'accurate and comprehensive way'?"
"What say?" is yet another Supreme Court first. It does show up in several earlier opinions, but only as an antiquated way of asking what somebody thinks. See, e.g., Creath's Adm'r v. Sims, 46 U.S. 192 (1847) ("What say the authorities in relation to a proceeding of this character?"); see also Aragorn, The Lord of the Rings: The Return of the King (2003) ("What say you? What say you? What say you?!"). But it's never been used this way.
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