Justice Scalia, Blind Like Pentheus

Justice Antonin Scalia

Justice Antonin Scalia

Justice Antonin Scalia has been outdoing himself in recent days with his over-the-top dissents to recent rulings. He reminds me of Pentheus in The Bacchae.

To bring you up to date: On Thursday, the outspoken justice blasted his fellow justices for saving Obamacare, asserting it should be renamed SCOTUScare as a result. Then on Friday, in response to the Supreme Court legalizing same sex marriage, he wrote,

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

And further on:

This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

As The Hill reported, Scalia was particularly upset that the justices didn’t represent a cross-section of America:

He notes that all the justices graduated from Harvard or Yale Law School, eight grew up on the coasts, and that not one is an evangelical Christian or a Protestant, religions that make up significant chunks of the American population.

Here’s Scalia again:

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.

What bothers me about Scalia is less his strongly held views than his blindness to his own inconsistencies. He self-righteously attacks his fellow justices others for usurping legislative power but has no problem with gutting Congress’s Voting Rights Act or overruling its limits on campaign contributions (in Citizens United). He insists on a narrow textual reading of what is essentially a typo when he wants to gut Obamacare, but he has had no trouble looking behind the words to determine legislative intent in the past (say, Utility Air Regulatory Group v. Environmental Protection Agency). And he didn’t mind stopping the Florida recount in Bush v. Gore to assure that a Republican president would be elected. This Supreme Court has been more activist than any we have seen in decades, but Scalia objects only when the vote doesn’t go his way.

At least he wasn’t as intemperate this session as he was ten years ago when he attacked the Court for throwing out Texas’s sodomy laws. At that time he wrote,

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision.

Of course, “significant chunks of the American population” now are fine with same sex marriage—recent Gallup polling puts approval at 60% and rising –just as, ten years ago, they found sodomy laws outdated and absurd. At such moments Scalia sounds more like the ranting uncle who watches too much Fox News than a Supreme Court justice.

Which brings me to Pentheus. When he returns to Thebes and finds that all the women are out dancing in the woods in honor of Dionysus, he goes ballistic. Then, when he discovers that wiser heads—Teiresias and his grandfather—approve, he directs his fury against them. He sounds a lot like Scalia excoriating his fellow justices:

I am ashamed, sir! How can a man so old
be so devoid of sense!
Take off that ivy, will you?
And drop that thyrsus [wand]. Now! Do you hear?
This is all your doing, Teiresias! Using him,
to launch this new God to the masses.
Convenient, isn’t it? Give religion a boost
and prophets grow fat, raking in the profits
from reading the stars and fire-magic.
You can thank your white hairs for being here and not in prison,
chained with those raving females; just the place for frauds
who encourage their obnoxious rituals.

Teiresias and Cadmus bowing to the new god are like Americans, including Supreme Court justices, evolving on the subject of same sex marriage. Acceptance of homosexuality is the new order of the day, and it is particularly impressive when old people come around. Pentheus attacking the city’s seer and the city’s founder is like Scalia sneering at at Justice Kennedy for authoring an option “couched in a style that is as pretentious as its content is egotistic.”

Unlike Kennedy, Teiresias hits back. Wouldn’t it be satisfying to see someone deliver a version of the following speech to Scalia?

When a sensible man
has a good cause to defend, to be eloquent
is no great feat. Your tongue is so nimble
one might think you had some sense, but your words
contain none at all. The powerful man
who matches insolence with glibness is worse than a fool.
He is a public danger.

And further on:

Nor should you boast of wisdom, when everyone but you
can see how sick your thoughts are…
And nothing you can ever say will make me
turn against the Gods. For you are sick,
possessed by madness so perverse, no drug can cure
no madness can undo.

Eventually in the play, Pentheus is exposed as a hypocrite and is torn apart for his failure to honor the new force that has entered his world. Sadly, Supreme Court justices, with their lifelong tenure, seem immune to any such comeuppance.

Added note – Looking back at Scalia’s dissent in the sodomy case, another couple of Pentheus rants seem appropriate. Like this one:

The rest of you,
scour the city, find this effeminate stranger

who afflicts our women with this new disease
and who befouls our beds. And when you catch him,
drag him here in chains.
He’ll taste the people’s justice when he’s stoned to death,
regretting every bitter moment of his fun in Thebes.

Scalia might add “afflicts our men.” Incidentally, I am citing from the wonderful Michael Cacoyannis translation, now sadly out of print.

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