It’s slippery slope week.
Here’s a snippet from Justice Antonin Scalia’s dissent on yesterday’s SCOTUS ruling on gay marriage:
When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.Â
Justice Scalia may indeed be correct about the alleged inconsistency; The court may have previously held that Lawrence v Texas wouldn’t entail gay marriage, but then in Windsor they use the legality of “homosexual sodomy” to justify not discriminating against gay marriages.  This, he maintains, shows the slippery slope from “homosexual sodomy” to gay marriage.
A few points.  First, since I’m not a legal scholar, I don’t know if the court has to maintain its promises–or whether the court can make promises like this. The gay marriage case wasn’t before the court at the time, and, as far as I know, the court decides only the cases it has before it. It would seem completely wrong for them to adjudicate such things in advance.
Second, inconsistencies are not ipso facto signs of dishonesty. I like to think my current correct views are inconsistent with my past incorrect ones. I also sincerely hope that my future correct views are inconsistent with my current incorrect ones.
Third, not all slippery slopes are fallacious. The court has recognized a right to “homosexual sodomy.” This means that homosexual relationships are not inherently inferior to heterosexual ones. This does in fact seem to entail that homosexual commitments differ in the same regard: i.e., not at all.
I’m not going to dig through the cases at this moment, but my initial reaction to Scalia’s paragraph is that it’s more a matter of P.R. than of scholarship – he’s attacking the majority in a manner that is apt to get picked up by the right-wing media, as opposed to truly trying to impeach its legal scholarship.
When an appellate court decides a case, it decides only the issues before it – and (although practice and theory can part company) is supposed to stop its analysis after it finds a basis to affirm or reverse, not continue to analyze issues that aren’t necessary to its decision. For example, if a criminal defendant were to raise a speedy trial issue, a search and seizure issue and that the jury was not properly instructed, the court might start by looking at the speedy trial issue. If a violation were found requiring reversal of the conviction and dismissal of the charge, it would not be necessary to discuss the remaining issues. If they found no speedy trial issue, but reversed based upon an improper search, it would not be necessary to discuss the jury instructions.
Similarly, an appellate court is not supposed to look for issues outside of those raised by the party as grounds for affirming or reversing a judgment. If a civil defendant does not object to jury instructions at trial and does not raise improper instruction on appeal, an appellate court reviewing the appeal on other grounds would deem those issues waived. It should not say, “We would affirm, but we just noticed this error that if properly raised and observed would have resulted in reversal, so we’re reversing.” (I switch here to a civil case, as there may be ineffective assistance of counsel or a violation of the defendant’s fundamental rights that justify reviewing an issue that was not properly preserved during trial court proceedings, and perhaps not even properly raised by counsel during a prior appeal.)
Finally, there’s the distiction between “dictum” and “holding” – the holding being that part of the case that’s (in theory) binding on future courts, and dictum being the parts of the decision not relevant to the holding that may sound good, even authoritative, but don’t create a precedent. A court overruled a criminal statute against homosexual sodomy, and comments in that decision that it does not believe that the holding is relevant to gay marriage? As the statement about gay marriage is a side comment, irrelevant to the holding, it isn’t binding on subsequent courts. (Note, this statement is hypothetical, not a comment on actual language from Lawrence.)
A court asked to decide whether homosexual sodomy between consenting adults is a crime might have supporters of the law argue, “If you reverse the prohibition you are paving a path to legal gay marriage”. However, the court could reasonably respond tht the case has “nothing at all to do with ‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter'”, as that issue was not before the court.
In terms of Scalia, what a difference a day makes. When he joined the majority to reverse Section 4 of the Voting Rights Act, he did not care that in 2006 the section had been reaffirmed by an overwhelming, bipartisan Congressional majority – he found that there was no rational basis for the provision. While “inconsistencies are not ipso facto signs of dishonesty” I would like to hear Scalia explain why we should not infer that he’s only interested in deferring to Congress when he likes the legislation he hopes to uphold.
Scalia has also long taken the position that if he views a precedent as wrong he feels free to vote to reverse it, even if it has been in effect for decades, or if it was passed in the prior term of the Court, so it’s fair to ask why he’s emphasizing dictum from a 10-year-old case – and should we infer that he assigns more significance to dictum with which he agrees than to holdings with which he does not?
Although I personally would never be so cynical, Freud might have deemed that last, boldfaced assertion to exemplify the phenomenon known as “projection”.
Thanks Aaron for the very comprehensive and enlightening response.
Seconded. Aaron rocks