America's great divide: The rule-followers vs. the do-gooders

As just about everyone recognizes, Kennedy’s majority opinion in Obergefell v. Hodges (2015) (which was joined by all four of the court’s Democratic appointees) was somewhat thin on constitutional justification. Instead of appealing to a strict scrutiny test under either the equal protection or due process clauses of the Fourteenth Amendment, Kennedy simply pointed out that marriage is a fundamental right, and then vaguely asserted that due process liberty interests and equal protection concerns trump other considerations, yielding a constitutional right to same-sex marriage.

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That sounds an awful lot like a Do Gooder out to find a way — any way — of getting to the goal of homosexual equality. It’s this ad hoc quality of the reasoning that, as much as anything else, drove Justice Scalia to apoplexy in his rant of a dissent. (Roberts objected to the same thing in his own much less insulting dissent.)

Scalia, you see, is a compulsive Rule Follower. In both constitutional and statutory cases, the rule is language: What, precisely, does the Constitution or the statute say? Scalia’s obedience to the rule of the text is so obsessive that it put him on a collision course with the chief justice in King v. Burwell (2015), the statutory case in which Roberts and five of his colleagues upheld the Affordable Care Act. Roberts might have been willing to overturn campaign finance regulations based on a Rule Followers reading of the First Amendment in Citizens United and McCutcheon, but he wasn’t willing to gut health care reform over a minor glitch in the language of a sloppily drafted federal law. The purpose or intent of the law’s drafters could be inferred and used to correct the infelicitous language.

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