Opinions

Supreme Court dissenters need to rediscover their judicial temperament

Summer recess can come none too soon for the U.S. Supreme Court—some of those folks clearly need a timeout.

The dissents of Justices Antonin Scalia and John Roberts to last week's decision on the same-sex marriage for Obergefell v. Hodges removed any doubt these supposed judicial leaders of our society have fallen into "partisan rancor" that "impedes their ability to carry out their functions." Ironically, those are the words of Chief Justice Roberts describing the dysfunction of Congress in a speech in 2014.

Scalia sounded like a petulant teenager when he said (because he didn't like the reasoning of the majority of his colleagues) he would "hide his head in a bag" if he were to join in such an opinion of the court written by five of the nine top jurists in the country. And the learned Scalia wrote "Huh?" in his dissent — expressing his puzzlement with the majority ruling. "Huh" in a U.S. Supreme Court opinion?

Seriously?

Roberts, for his part, accused the five-member majority of the court of issuing an opinion that had "nothing to do with the Constitution," was "prideful and unwise" with "not even a pretense of humility." What possible good can come from such statements, unless one thinks that increased public dismay with our government is a good thing?

But far worse than these petulant unjudicial and intemperate outbursts are the words both justices wrote to advocate the public devalue the court, and the rule of law it represents. Scalia asserted he wrote his dissent "to call attention to this Court's threat to American democracy." Roberts invited the public to join in his disrespect for his colleagues because he believes there was no "legitimacy" to the court's decision, claiming: "Those who founded our country would not recognize the majority's conception of the judicial role." He claimed the court's "accumulation of power … comes at the expense of the people. And they know it."

What are these justices suggesting? That we should overthrow the Supreme Court or ignore its decisions because the court is a "threat to democracy"? When the justices think the decisions of the court are at the "expense of the American people" are we — the "people" whose minds Roberts claims to know — supposed to now jettison that institution as part of the democratic process?

ADVERTISEMENT

The words chosen by these two justices are akin to the "fighting words" which the Supreme Court, in 1942, in Chaplinsky v. New Hampshire (a free speech case) unanimously found not worthy of First Amendment protection, holding "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

It is time for judicial temperament, not temper tantrums. Hopefully after the summer break, Scalia and Roberts and the others will be able to return to civility to express their opinions in a way that fosters social order and morality, rather than actively undermining the very institution and people they serve.

Nancy Wainwright is an attorney who has practiced in Alaska for 27 years. She is a member of the U.S. Supreme Court Bar.

The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com

Nancy Wainwright

Nancy Wainwright is an Alaska attorney.

ADVERTISEMENT