Bench Memos

Rank Milbankery

Almost seven years ago here at Bench Memos (my, how time flies), I suggested that just as “Bork” had become a verb in our political lexicon, “to Milbank” might merit similar treatment.  I said at that time:

“To milbank,” as in the Washington Post’s columnist Dana Milbank, would mean “to opine about public affairs in a persistent state of adolescent sputtering, determined to learn nothing about the subject while having access to a wealth of information about it.”

Well, there’s rampant milbanking in today’s Post, in a column devoted to Justice Antonin Scalia’s appearance earlier this week at Princeton University.  I was present for Scalia’s talk, and witness to the event that has Milbank, well, milbanking this morning.

It seems that a young student stood and, quoting some of Justice Scalia’s own words in long-ago dissents back to him, asked him why it was “necessary” for him to “equate” homosexual conduct with murder.  Many in the audience applauded the young man when he was finished.  But when Scalia began his answer by saying that it may not be “necessary” for him to draw this analogy, but it is “effective,” the applause was a little louder, from where I was sitting in the front row of the balcony in Richardson Auditorium.  (The AP report linked above contains the writer’s opinion that the applause was louder for the student than for Justice Scalia, but that is not what I heard.)

Contrary to Milbank’s column, the “murder” analogy did not appear in Scalia’s dissent in Lawrence v. Texas in 2003, either.  The student questioner did not say it did appear there: he accurately quoted that from Scalia’s earlier dissent in Romer v. Evans in 1996.  Be that as it may, Scalia’s answer was that the argument he was making, with which the student should be familiar, is the “reduction to the absurd.”  Milbank quotes this in his column, but evidently does not understand it.  Here is what Scalia said in Romer:

Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons—for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct—that is, it prohibits favored status for homosexuality.

And here is a similar remark, albeit with no reference to murder, in Lawrence:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” . . . —the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. . . . This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Milbank seems, like the young Princeton student, to think that Justice Scalia regards homosexual conduct as fundamentally like ([update:]i.e., “on par with,” in Milbank’s words) murder, or bestiality.  Or that he thinks that, having granted homosexual conduct protected status under the Constitution, the Court is now committed likewise to give the same status to bestiality or murder. 

But neither of these conclusions was Scalia’s point at all.  (Sigh. Does one really have to explain logic to grown-ups?)  His point was that if the operative premise of the Court’s reasoning is that the moral conviction of the community is an insufficient ground for legislation, there is no constitutional basis for a great many laws we all agree are valid, and that have no other basis than the community’s moral conviction.  He was not sounding the alarm that the Court is about to permit murder, or that it can reasonably be expected to obey this logic in future.  Nor was he “equating” any species of conduct with another, on some scale of good and evil.  He was–absolutely rightly–criticizing the logical incoherence of the majority opinion in each of these cases (both written by Justice Anthony Kennedy).  The logical criticism “who says A must say B” is not a statement of any expectation that the person addressed will in fact say B because he has said A, nor that he should.  It is a criticism intended to sharpen up the other’s thinking, and get him to see the inadequacy of the reasoning he has employed.  If B is an absurdity, but one that is logically compelled by saying A, ought one to think of something to say other than A?

Nah.  One could just do a little milbanking and call it a day.


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