For some of us, one of the great intellectual delights is reading the opinions of Supreme Court Justice Antonin Scalia. That’s because he’s not only a brilliant legal mind; he’s also a fantastic writer.
I was reminded of this in reading Justice Scalia’s concurring opinion (joined by Justice Thomas) in Schuette v. Coalition to Defend Affirmative Action, in which the Supreme Court upheld Michigan’s ban on using race as a factor in college admissions.
The Court, in a 6-2 ruling (with Justice Kagan recusing herself), declared Michigan voters had the right to change their state constitution in 2006 to prohibit public colleges and universities from taking account of race in admissions decisions. (The justices said that a lower federal court was wrong to set aside the change as discriminatory.)
Justice Anthony Kennedy wrote for the majority. But it was Scalia who, as usual, put things best. Here’s how he begins his opinion:
It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dissenting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it. [italics in original]
Justice Scalia ended his 18-page opinion this way:
As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.” The people of Michigan wish the same for their governing charter. It would be shameful for us to stand in their way.
In citing Justice Harlan, I’m reminded of President Kennedy’s 1963 civil right speech in which he, too, quoted Harlan:
It ought to be possible, in short, for every American to enjoy the privileges of being American without regard to his race or his color…
As I have said before, not every child has an equal talent or an equal ability or an equal motivation, but they should have the equal right to develop their talent and their ability and their motivation, to make something of themselves.
We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair, that the Constitution will be color blind, as Justice Harlan said at the turn of the century.
I cite the Kennedy speech both because of its moral force and because it reminds us what liberalism once stood for: justice and equality before the law, judging people by the content of their character and not the color of their skin, and refusing to count by race.
Today liberalism is not just different than this; it’s the antithesis of it. You need only read Justice Sotomayor’s 58-page dissent, where she piles one bad and misleading argument on another, to understand that. Liberalism is now in a position of insisting that subverting equal protection of the law is actually upholding it.
There are probably better examples of the corruption of language; of using words to “give an appearance of solidity to pure wind,” to quote a line from Orwell. But none come immediately to mind.