Justice Antonin Scalia Breaks from the Party Line on Gays

We should take special note of any sign that a justice, like Scalia, has a mind of his or her own.

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By John Aloysius Farrell, Thomas Jefferson Street blog

Illinois Gov. John Peter Altgeld, a great American liberal of the 19th century, once noted that Supreme Court justices wear black robes to add majesty to their work. After one particularly bad decision from the corporate court of the 1890s, Altgeld suggested that the justices were going to need more robes.

So it is with the political appointees on today's court. Liberal or conservative, they vote the party line and stick to their own little blocs, and mingle in their off hours with their partisan buddies.

After Bush v. Gore, and the recent decision on corporate campaign spending, I think more than a few of today's justices, wanting a semblance of majesty, will need to wear so many robes that they'll end up looking like the Michelin man. I am sure that conservatives, looking at the liberal bloc, have plenty of their own examples.

Is it too much, as we contemplate the vacancy caused by the retirement of John Paul Stevens, to ask for justices that didn't settle into their ideological niches in some Ivy League law school, and spend the rest of their lives kissing political butt? That is why we should take special note of any sign that a justice has a mind of his or her own. On Wednesday, who showed up as an independent thinker but Justice Antonin Scalia.

The case at hand was from the state of Washington, where individuals who signed petitions challenging a gay-rights law went to federal court to have their names kept secret. They didn't want their friends or kids or neighbors to know they were bigots, I guess, and they claimed that the vast homosexual conspiracy would harass them.

The law they wanted to shoot down, in secret, is a ridiculously mild statute that allows gays, banned from getting married, to at least join in domestic partnerships. For tax reasons, many (straight) senior citizens liked and supported the legislation as well.

Scalia, to his credit, was incredulous that Americans could be so cowardly as to ask the federal courts to establish a constitutional right to anonymous whining. "The fact is, running a democracy takes a certain amount of civic courage," the justice said. "The First Amendment does not protect you from criticism or nasty phone calls."

Predictably, Justices Roberts and Alito (name the bigger disappointment there) clung to the party line. Public disclosure might have a "chilling effect" on those that want to lash out from the safety of a good hiding place, Roberts fretted.

Scalia urged the Washington folks to stop being so sensitive and "touchy-feely," and to otherwise grow a backbone. Well said.

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