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In Contempt of the Citizenry: From Plessy to Windsor

As Richard Reinsch notes, Justice Scalia’s dissent in Windsor is a powerful response to Justice Kennedy’s majority opinion, which “put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism.”

It occurred to me that the Supreme Court has rarely expressed such comprehensive and prominent disdain for whole classes of citizens.  True, Justice Kennedy had leveled a similar accusation in Roemer and Lawrence. But the law at issue in Roemer resulted from a discrete act of the people of Colorado, and Lawrence involved a largely unenforced statute.  In those cases, the target of his disdain was selective, involving citizens who would not likely read or care much about the case.   DOMA, in contrast, was a prominent national statute, the subject of extensive popular deliberation, and its invalidation was sure to make headlines.

I’ve been trying to think of any prominent, contentious case, attracting national attention, where the Court has expressed such contempt for a large portion of the citizenry.  The closest parallel that comes to mind is Plessy v. Ferguson.  Writing for the Court in the case, Justice Brown insinuated that willful error was the source of African Americans’ opinion that racial segregation meant racial subordination:

We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

Like Justice Kennedy today, Justice Brown left no room for honest disagreement, for reasonable mistake.  Justice Brown knew the bad-faith, the deliberate ignorance, in the minds of African Americans.  Justice Kennedy knows the malice in the hearts of marriage traditionalists.  Both judges (and their colleagues) decided that the United States Reports were the appropriate place to publish their contempt.

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