The Right Coast

April 17, 2005
High court sex acts
By Tom Smith

The impertinent question by an NYU law student / gay activist to Justice Scalia regarding his marital sexual practices has excited a certain amount of commentary in the blawgosphere. For most of us, I am sure, there are certain things we prefer not to think about, not to imagine, and in my case, for one, the sex lives of Supreme Court justices are certainly among them. To that NYU student whose name will live only very briefly in infamy, one can only say "thanks for the visual." It's like imagining your parents having sex. Presumably they did, but you just don't want to think about it.

It's hard to see also how this incident is going to make NYU an even more popular venue for speakers who fall outside the intelligensia PC mainstream. Since I am fairly cynical about the possibility of fair, honest, and open debate of topic such as gay rights on university campuses anyway, this may not be much of a loss, but Mr. whatshisname hasn't done the NYU student body any favors. But that was probably not his intention.

It goes without saying that it is extremely rude to query a speaker about his marital relations, but sometimes rudeness is justified. It would be very rude for a grieving mother to throw the blood soaked clothes of her murdered son into the face of some miscreant, bemedaled third world dictator, but her rage might well be justified, and the pompous tyrant deserve to internalize some little bit of the pain he had caused others. Attempting to do something similar to Justice Scalia, however, just shows how clueless the Scalia haters in the gay rights movement can be. There is no reason to doubt that Scalia is quite sincere in thinking that he is just in the business of applying the constitutional law as he finds it, rather than imposing his ethical intuitions on an unsuspecting public. As Scalia has said in the several speeches of his I have heard, he is just a lawyer in the end, and doesn't have any unique insights about the best ultimate policy on any topic or other. So what the activist is really punishing Scalia for is his refusal to go along with the program of imposing their preferred policy from the bench. Scalia ends up taking the heat for doing his job, which is trying to hold as much as possible to the rule of law. The idea is, he has to do what is necessary to legalize homosexual sodomy because the legislature of Texas refuses to do so. And if he won't, well, he had better watch out.

Something that makes the incident worse, of course, it that it took place at a law school. The whole idea of a law school is that it is a place where reasoned argument is supposed to be the currency of the realm, not emotional pleas and certainly not the kind of coercion implicit in a very rude question. A law professor who asked an insulting question to a student about his sexual practices should certainly get in trouble, and probably would. Somehow I doubt the NYU student in question need worry about any disciplinary consequences. Call me old-fashioned, but I don't see anything wrong with a rule which would require students to treat visitors with courtesy and respect, upon fear of expulsion if they did otherwise. It's a law school, not a street corner. I'm not holding my breath.

A final point may be worth mentioning. The insult of the NYU student's question is really just a more brazen form of the sort of social pressure put on judges all the time in an attempt to influence them in one direction or another. Your social life in liberal Washington will be much more pleasant if you are a liberal justice. My pet theory about Justice Souter, for example, is that as someone who lived in an isolated house with his mother, he was particularly suseptible to the dazzle and flattery of Washington's liberal salons.

It's a difficult problem, for many of the people who are motivated to do all the things you have to do to become judges, especially Supreme Court Justices, are also the sort of people who crave approval from their peers and social "betters." For all that he was in many ways a repellant character, you have to admire at some level someone like Oliver Wendell Holmes Jr., who deep in his heart, truly did not give a damn what you thought of him. The Civil War and being a stony hearted bastard to begin with will do that to you. You would not want to have been poor, long suffering Fanny Holmes, but it sure helps keep the judiciary independent. But not many judges are Holmes's.

The funny thing about our less than clever NYU activist's insult of Scalia and his wife is that nothing could be more calculated than such an insult to make Scalia bear a grudge against the activist's tribe. Scalia is an honest enough jurist to resist such an emotion, but generally speaking, it is a bad idea to bring in the wives, mothers, or children of those who are in position to hurt your cause. It's not personal; it's business. Gay activists might just want to keep that in mind.