More Scalia than Scalia: The chief crank's most embarrassing dissent yet

Conservative comedian Antonin Scalia is not happy about nationwide gay marriage!

Published June 26, 2015 4:05PM (EDT)

  (AP/Josh Reynolds)
(AP/Josh Reynolds)

"I join the Chief Justice's [dissent] in full," Justice Antonin Scalia begins his own dissent in Obergefell v. Hodges. "I write separately to call attention to this Court’s threat to American democracy."

Thus kicks off a screed to Scalia-esque that it can only be described more Scalia than Scalia. It is post-Scalia: it is him acknowledging his late-tenure role as chief crank on the Court, and cranking that showmanship into previously unexplored frontiers Let's run through this document, which sees the eloquence of Justice Kennedy's majority opinion and responds with disproportionate sourness.

First he tries to play it cool. "The substance of today’s decree is not of immense personal importance to me." Whatever, gay people can get whatever bennies they want from the government, I don't care, big deal. I do not think that Scalia is as indifferent towards society's acceptance of same-sex relationships as he purports to be.

This gives way to Scalia's real problem, which is that the majority opinion acknowledging the rights of same-sex persons represents the end of the 200+ year old American project and the return of pre-Enlightenment tyranny. Is that all?

Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Consti- tution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

This cloak of populism runs throughout his piece. It is virtually indistinguishable from a speech by Mike Huckabee or Ted Cruz, who are politicians. It is strange for a Supreme Court justice to take an explicitly anti-Court stance, to insist that the Court has no business making judicial decisions that might run counter to the will of the people. (Which, by the way, this decision does not.)

Scalia, after delivering a brief history of the founding of Western democracy and the enshrinement of its ideals in the U.S. Constitution, accuses someone else -- in this case, Justice Kennedy -- of penning "straining-to-be-memorable passages." He argues that the majority, in finding a right to same-sex marriage within the Fourteenth Amendment's Equal Protection clause, has given judges carte blanche to find whatever they want to find within the Fourteenth Amendment. Or as he puts it: "No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its 'reasoned judgment,' thinks the Fourteenth Amendment ought to protect." (It's more than a little unusual that Scalia sees this as the dawn over Fourteenth Amendment over-interpretation, considering how quickly corporations twisted the Fourteenth Amendment to their interests in the late 19th century.)

He then goes on a tangent essentially calling himself and his colleagues snobs who do not fully represent the diversity of the American people, and thereby should have no business making decisions that should affect the American people. (Brief reminder: this decision does not harm any person in the world. It does not break up straight marriages. It does not require all gay people to get married. Despite what Ted Cruz may say, "mandatory gay marriage" is not here. Yet!)

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South-westerner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

Elsewhere Scalia refers to the decision as "a judicial Putsch," "pretentious," "egotistic," "showy," "profoundly incoherent," and "pop-philosophy." "The Supreme Court of the United States," he writes in one of many mocking footnotes, "has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."

And does the author of this sub-Breitbart rant suppose he's left holding the torch of John Marshall's "disciplined legal reasoning"? This is the Antonin Scalia who, in addition to everything else we've quoted, includes in his dissent a "take my wife, please"-level airport hotel lounge joke about marriage. "Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say." Wokka... wokka?

"The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis," Scalia writes near the end, without irony, displaying his absolute lack of self-awareness. Think the opinion's an embarrassment? Just wait until you read the second dissent.

By Jim Newell

Jim Newell covers politics and media for Salon.

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