I have just read a report about Justice Scalia's critique of Justice Kennedy's opening lines - the poetic words of consent that will long be remembered as the critical turning point towards equality in same-sex marriage legislation across the United States. Kennedy, in his usual flowery way, wrote that "Marriage responds to the universal fear that a lonely person might call out only to find no one there". Scalia, unrelentingly scathing in his remarks, 'wrote in a footnote that he would “hide his head in a bag” if he ever signed onto an opinion containing [Kennedy's] sentence, which he said contained “the mystical aphorisms of a fortune cookie.”' The other four Justices, voicing their dissent for the majority of 5 and especially for the deciding opinion, reiterated their preference for a constitutional, level-headed, mechanical interpretation of the law - and vehemently opposed the 'shiny rhetorical gloss', egotistic profundities, and 'silly extravagances' of Kennedy's write-up.
I think what's remarkable about the 'war' of the Justices is how it alludes to the fault-lines now showing up in language 'itself'. Once it would have been incontestable to see the world as a bicameral distinction between 'things that are factual and practical' and 'things that are mystical and poetic'. The legal system depends on the integrity of those divides. Yet, in perhaps American history's most poignant exemplification of 'poetic justice', a significant victory was won - by words and sentiments that appear fluffy and 'unprofessional'. Perhaps this is a clear indication of the ways those divides are coming undone, and how boundaries are becoming more and more porous. The nature of the 'factual' is changing, and the grounds upon which our most formidable institutions are built are revealing their inherent instabilities. The dissenting Justices looked at the Constitution and saw a document that is resolute, fixed, and unambiguous about its dictates. Kennedy looked and saw himself, the unwieldiness of his experiences, and the pretentiousness of representationalism. He saw cracks and fissures, double entendres, air-quotes, tongue-in-cheek-sentences, parentheses, and hybrid-truths. He saw a document with ellipses, 'the meaning of which we are still learning' - instead of an injunction from outside, an Archimedean creed or declaration. A full-stop.
What's interesting to me is not that same-sex marriage rights won the day; it's that the 'deciding factor' wasn't a fact in the way we have come to understand 'facts'; it was a reconceptualization of facts, a reconfiguration of the literal. It was how Kennedy went in there, got his hands dirty by upturning bedrocks and quiet fields and chief cornerstones - and then found nothing is fixed. Not meaning. Not old regimes. Not sacred texts. Not worldviews. Not the past. Not old habits. Everything is complicated, entangled and indeterminate. And when his first words appeared on paper, they showed that they were the true children of a more vibrant parliament of things. His final line, 'It is so ordered', was a Trojan horse accommodating the outrageousness of a world that resists order, that constantly deconstructs itself.
Perhaps the poetic is the most appropriate way to respond to the sensuous, material-discursive unfurling of 'consensus' reality. As David Whyte asserts, the poetic is language against which there are no defenses. What's now important, what's now true, what's now worth paying attention to, is changing. Who knows, the fortune cookies Scalia so rudely disparages might be history texts for generations yet unborn.