Killing Us Softly With Its Words

Maybe a little understatement from the Supreme Court is OK

In 2003, when the U.S. Supreme Court struck down Texas’ criminal ban on gay sex, Justice Antonin Scalia weighed in with a caustic dissent.

The court’s 6-3 majority, he wrote, “has largely signed on to the so-called homosexual agenda,” even though “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.”

Last week, also by a vote of 6-3, the court upheld Tennessee’s ban on gender-transition care for teenagers and other minors. Justice Clarence Thomas, in many ways Scalia’s heir in hard-right legal perspective if not rhetorical mastery, backed the majority in a concurring opinion that warned of relying on questionable experts to justify “gender-affirming care.”

That was the phrase he used – gender-affirming care – not “mutilating children” or “the transgender agenda” or some other offensive language that might have thrilled his transphobic fans. He didn’t misgender trans people or write the kind of incendiary words that in the past might have tripped off Scalia’s tongue. Instead, Thomas and his conservative colleagues in the majority spoke of “gender dysphoria” as a fact.

It's a low bar when justices draw attention for acting like normal humans, and god knows the decision is a set-back for transgender rights and may well be wrong on the law. But it’s also notable that this justice, and this court majority, treated the topic and the people involved with respect.

Does it matter?

Consider what happened after another Scalia rant. In 2013, the justice dissented to the court’s evisceration of the Defense of Marriage Act, DOMA, which blocked federal recognition of same-sex marriages approved by a state. The majority based its decision on federalism, the notion that on matters of matrimony the states could do what they wanted.

But in a scathing dissent, Scalia claimed that the real reason his colleagues – despite their “legalistic argle-bargle” – struck down DOMA was that they had bought into the “homosexual agenda” and believed this law was intended solely to punish same-sex couples – which would be an unconstitutional purpose. That was unfair, Scalia said, because there were legitimate reasons to prohibit gay weddings. He warned of impending disaster: Lower courts would seize on the majority’s errant logic to overturn state laws that legitimately barred gay marriage.

Expressed in less inflammatory language, Scalia’s point might have been given a pass. But as scholar Garrett Epps explained, it snapped the press and the public and the lower courts to attention, leading many judges to cite Scalia’s claim – that the majority thought DOMA was mere punishment – in striking down a dozen state bans on same-sex marriage by May 2014.

Yeah, words matter.

Scalia never let on about regrets for saying what he said, but the current court has surely learned from his mistakes. Its decisions can be as regressive and sometimes wrong as imaginable, but on cultural issues and highly divisive political issues, the stuff that gets people going, it generally takes a civilized tone. Even Donald Trump can’t get a rise out of them.

In March, after U.S. District Judge James Boasberg blocked flights that spirited Venezuelans out of the country without any kind of hearing, the president took to Truth Social to call the judge an unelected “troublemaker and agitator” and demand his impeachment – echoing what several members of Congress and Elon Musk had said about other judges whose rulings they did not like. Within hours, Chief Justice John Roberts responded: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.”

In the scores of lawsuits challenging the administration’s often wildly lawless agenda, the court has also resisted taking the bait. Maybe the closest a justice has come to lashing out was in Sonia Sotomayor’s dissent to a ruling in another aspect of the Boasberg case, the one that said the Venezuelans deserved due process but had sued in the wrong court.

“The government’s conduct in this litigation poses an extraordinary threat to the rule of law,” she wrote. Her harshest words were for her fellow justices: “That a majority of this court now rewards the government for its behavior…is indefensible. We, as a nation and a court of law, should be better than this.”

Many Americans read these statements as underwhelming at best. It would no doubt be satisfying for critics on the left to hear the nation’s highest court really stick it to Trump, just as it would have been satisfying in MAGA world to hear Thomas or one of his conservative colleagues express outrage over gender transition. But at a time of rancorous division – threats against judges, deadly violence against political figures, doubt about whether the president will obey court orders – a little civility and understatement seem wise, maybe even like progress,

Scalia was nothing if not entertaining. This court lacks that quality, and we’re surely better for it.