I'm extremely worried by the content of the dissenting opinions, specifically Roberts', but Thomas' and Scalia's too.

Scalia, aside from being an insulting ass, hid behind his fucking stupid originalism, like we all knew he would. But god the cognitive dissonance in that man's head. Thomas said: "Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government." Clarence, human dignity is innate, just as are human sorrow and human envy. But the government took it away, and now it's giving it back. Not that hard to understand, but then you're an idiot.

Here's where it gets serious. Roberts spent his whole paper spewing the usual states' rights cant. I have simultaneously the least problem and the most problem with that. On one hand, I understand the importance (though hugely overstated in the modern era) of balancing the state and the federal government. On the other, Roberts all but said he supported gay marriage -- just not in his function as a Supreme Court justice. In other words, the court's hands were tied by the law, or whatever. This is insidious. The primary law enforcer in the western world just implied that the law wouldn't allow him to make the morally correct decision; he had to make the legal one. This came very close to costing a lot of people something important for no damn reason. Forest for the trees, Roberts.

Laws are designed to serve the people and when they stop doing so in such a blatant fashion, right under our noses, why do they exist? All I can say is I hope to see some discussion about this going forward, but I sure don't expect to.

The bigger picture is that, on certain issues, this doublespeak is the way dissenting opinions (and a few majorities) have been written for the last ~30 years. One side of the court enacts a policy they think is simply for the greater good, and the other side says: we're voting against this on the basis of our country's legal documents, not what we actually think is right. Or maybe, as in Scalia's case, they actually think the Constitution represents "right" (objectively) which it never did even in 1787. But for the most part I bet it's the former. And that's a destructive trend which has the potential to become even more destructive after 2016.



    The primary law enforcer in the western world just implied that the law wouldn't allow him to make the right decision; he had to make the legal one.

Roberts isn't alone here. Scalia once wrote in a dissenting opinion in a capital murder case that it doesn't really matter whether one committed a crime, only that one was fairly tried.

From the dissent in this case:

    This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

posted by flagamuffin: 1518 days ago