Justice Rip Van Winkle: The Sour Puritanism of Scalia's Tirade Has Gotten Most of the Ink, but It's the Flagrant Politicization of His Response That Is Worthy of Censure

By Quindlen, Anna | Newsweek, July 14, 2003 | Go to article overview

Justice Rip Van Winkle: The Sour Puritanism of Scalia's Tirade Has Gotten Most of the Ink, but It's the Flagrant Politicization of His Response That Is Worthy of Censure


Quindlen, Anna, Newsweek


Byline: Anna Quindlen

Bless the federal judiciary. Sure, its members are not perfect--way too many white guys to be truly representative, for one thing--but in this system we call checks and balances, appointed judges with life tenure seem to be all that stands between American citizens and sycophantic leadership. Sandwiched between the legislative, poised for the next election cycle and watching the voters the way a cat watches a mouse hole, and the executive, poised for the next election cycle and watching the voters the way a spider watches an ant, the members of the judicial branch have emerged as the last group watching the Constitution. Frequently right, often thoughtful, even apolitical.

With some notable exceptions.

As its last hurrah of this latest term, the U.S. Supreme Court handed down a decision that was hugely revolutionary when it ought to have been largely unremarkable. The majority of justices decided that private sexual conduct between consenting adults is not the business of the government and struck down state sodomy laws that criminalized homosexual acts. In the minority was Antonin Scalia, who read his dissent aloud to onlookers, some of them weeping gay men and lesbians overwhelmed by being recognized as full citizens of their own country.

Scalia's contrary opinion evoked that old chestnut, the "homosexual agenda." (What is the homosexual agenda? Refusing to wear Dockers?) And he added, in a stunning justification, "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their homes." Tweak that sentence to read "persons who openly engage in Islam" and see how it reads as a high-court opinion in an allegedly free country.

But the most notable aspect of Scalia's decision was not its prejudice or its prurience but its politics. His words were openly partisan, designed to call to arms the social conservatives who have long insisted that an activist court is the aim only of the left. And as such he did a grave disservice, not only to gay men and lesbians, but to the body in which he is privileged to sit and the principles for which it still stands in a rapidly eroding civic climate.

To read Scalia's decision is to wonder whether he was writing about sodomy laws or abortion rights. While the majority mentioned Roe v. Wade as one of several past decisions that have found a right to privacy in intimate decisions, Scalia dwelled on it, even beginning with a quote from the original opinion.

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Justice Rip Van Winkle: The Sour Puritanism of Scalia's Tirade Has Gotten Most of the Ink, but It's the Flagrant Politicization of His Response That Is Worthy of Censure
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