Justice Scalia, at the very beginning of his dissent in Obergefell v. Hodges, showed that he still is, and most likely will die, a legal positivist. Now, I have some sympathy for Justice Scalia’s position. Positive law is supposed to be about reaching logical conclusions. In any given case, the judge must ascertain what the applicable rule of law is and then apply it to the facts before him. Ideally, he should be able to summarize his ruling in a clear outline, with each conclusion following logically from the rules of law. The judge must also be able to justify the weight he gives to certain facts and his assessment of the various witnesses’ credibility in an intellectually coherent manner. Last Friday’s decision—as Justice Scalia is perfectly correct to point out—failed miserably as jurisprudence from the point of view of positive law; Justice Kennedy’s “rules of law” were, in Justice Scalia’s memorable insult, no more than “fortune cookie aphorisms."
Justice Scalia’s solution, though, is false; it runs into two problems. First, it denies the fundamental insight of natural law that over and above positive law there is a transcendent justice which positive must respect; a positive law that contradicts this transcendent justice is null and void and cannot bind the individual conscience. Even though most Americans have a very skewed notion of this transcendent justice—and Justice Scalia is right to combat these errors aggressively—these same Americans are nevertheless correct in their intuition that an unjust law is no law at all, and that our nation’s highest court should say so.
Second, it is futile for Justice Scalia to protest against Justice Kennedy’s smuggling of quasi-metaphysical notions of freedom and equality into the Supreme Court’s jurisprudence when the 14th Amendment makes these same notions the very cornerstone of our law. Justice Scalia’s valiant efforts to limit the baleful influence of vague ideas of freedom and equality on America by resort to historical research and originalism have always been bound to fail because freedom and equality have been our dangerous ferment since the days of the Revolution. They have been acting throughout American history, sometimes quickly and sometimes slowly, but always there. Justice Scalia’s historical research ignores this fact.
In short, because of his own philosophical blinders—his legal positivism—and his own ideological commitments—to democracy—Justice Scalia will never actually address first principles, which was what our nation so needed to hear on Friday.
(Ed Peters makes a similar point in his post on Justice Scalia.)
The Court’s decision in Obergefell v. Hodges also makes me ask whether ordinary legal processes are adequate for determining first principles. In fact, this gay “marriage” case illustrates perfectly why the answer to this question is “no.”
A cardinal rule of appellate litigation is that a reviewing judge is not supposed to consider any facts (except the most trivial) that are not contained in the record; likewise, the litigating attorneys may not refer to any facts (except the most trivial) outside the record, except by way of analogy. The record—for all you non-lawyers out there—is the documented proceedings and testimony taken in the trial court. It contains the parties’ pleadings, the sworn testimony recorded by the court reporters, and, in some cases, the physical evidence. Even in our increasingly digital age, all the case records I have ever dealt with in my law practice have been bound collections of paper documents. In other words, if litigating attorneys want the reviewing judges to consider certain facts, it must be introduced into evidence at trial properly and then included in the record. If something is not in the record, it does not exist for the judge and the attorneys.
But, when the question is as complex as the nature of marriage and its incompatibility with homosexuality, a question which could be studied over the course of an entire lifetime, how does a litigating attorney even begin to develop an adequate record and a reviewing judge to read and comprehend it? The issues involved are too complex and the required expertise too variegated for busy attorneys and judges to master these issues within their own lifetimes.
Our legal processes are well designed to deal with discrete incidents, but not with broad social policy or great philosophical issues. Nevertheless, if the law is to have a firm foundation, it must ultimately have recourse to philosophy. But woe to the nation that looks for answers to the most vexing questions of philosophy to Justice Kennedy.