Remove All Doubt
Tuesday, July 1
 
Phyrric Dissent?

Scalia may have won his battles, but lost the war in Lawrence v. Texas. Most of his points seem right:

(1) Overruling Bowers with Lawrence because the public has turned against it seems inconsistent with upholding (part of) Roe in Casey because the public has turned against it.

(2) It does seem difficult to say that private, consensual, sexual conduct is a fundamental right in light of the long history of sodomy laws, even if they weren't enforced. And that means that the "liberty of person both in its spatial and more trancendent dimensions" (majority 1) doesn't include a fundamental right to sodomy, homosexual or otherwise.

(3) Sexual morality does seem to be a legitimate state interest, as obscenity laws and laws against adult incest show.

But, somehow, his dissent lacks the typical Scalia punch, and I think its because its aggressiveness overpowers its argument:

(1) Scalia's stare decisis argument seems more angry about Casey than Lawrence, when Lawrence, not Casey is at issue. He says, for example, that Lawrence has "exposed Casey's extraordinary deference to precendent for the result-oriented expedient that it is." (7). This attack is even more out of place because it was O'Connor who wrote Casey, and she didn't join the majority in Lawrence.

(2) Scalia makes very clear that the majority did not rule that homosexual sodomy is a fundamental right, yet he spends 4 1/2 pages (10-14) establishing that it is not.

(3) Well, as for (3), he's got a pretty good point. But, if (3) is a good point, why, then, not lead with it? And why not use (3)'s less is more philosophy throughout?

(4) (bonus point!) Why is it necessary to refer to the right in Roe as "the right to abort an unborn child"? (11). Roe after all, is (mostly) the law of the land, and it can be adequately described as a right to have an abortion.
The structure isn't as direct as we're used to, and the rhetoric is hotter than usual, creating an impression that Scalia's stance is more personal preference than neutral application of the law. That's a shame, because once you get past the rhetoric, Scalia points out adequate legal reasons to dissent from the majority position.

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