Sunday, December 29, 2013

Dissent blowback, or two cheers for Justice Scalia

I guess it's lawblogging day, so here's an idea I've been thinking about for years but haven't seen in the legal literature (maybe it's there somewhere):  when the dissent says the majority opinion could have massive legal implications, the dissent is helping making those implications happen.

Let's count down in reverse chronicological order, cheering for Justice Scalia and the anti-gay marriage lawyers:

Hooray!:  Judges in Utah and Ohio say Scalia in dissent was right in saying the Windsor decision requiring federal recognition of gay marriage requires those two states to give some recognition of gay marriage. 
Hip!:  Court majority refuses to respond to dissent's draft argument in a way that limits the potential legal implications of their conclusion. 
Hip!:  Dissent, following the initial vote that shows its opinion will be the dissent and not the majority, argues in a draft response to the draft majority opinion that it will have far-reaching (and by the dissent's perspective, negative) implications. 
Hooray!:  Lawyers/advocates opposing same-sex marriage, not yet knowing the outcome, argue that striking down DOMA could eventually strike down state laws prohibiting same sex marriage. 
Hip!:  Lawyers supporting same-sex marriage dance around implications of striking down DOMA 
Hip!:  Legal action against DOMA begins, but what are the broader legal implications of victory for either side?

I put in bold the two decision points where actors should have known that they were creating a risk of making things worse from their own perspective, but they went ahead and did it anyway. For a dissenting judge, I think the issue is that the judge has his own policy perspective, but he's also interested in being right. I bet Scalia may consider himself vindicated right now, even as he's also horrified at the prospect of loving gay couples being treated like real human beings.

The advocates OTOH might not want to be right about the broad negative implications of losing, but at the time they make their argument, they don't know they're going to lose, so they make the broad argument in hopes that it helps them win.

And while I think Scalia et al. are on the wrong side of history, the dissent blowback problem is value-neutral. If you're arguing for the good guys, you also have to consider what will happen when you say the other side's viewpoint will have huge implications, and the court goes with the other side anyway.

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