Unethical Quote of the Month: Justice Antonin Scalia


“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia, excoriating his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling today,  authored by Kennedy,  that same-sex marriage was a Constitutional right  no state could deny. Scalia filed an angry and intemperate dissent, low-lighted by this comment in a footnote.

Wrote Prof. Stephen Gillers, legal ethicist:

“How after this can Kennedy work with him?  Scalia has himself “descended” from the manner of argument found  in  opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.  Scalia sets a bad example that will harm civility in lower courts and at the bar.”


The rest of Scalia’s dissent is hardly more restrained, either.

You can read the opinion and dissents in Obergefell v. Hodges here.

UPDATE: Here’s a screenshot of another selection, courtesy of Slate:


Arguing with the majority’s wisdom and legal analysis is one thing, mocking a Justice’s writing style is quite another—unprofessional, uncollegial and below-the belt. Yes, Nino is a much better writer than Kennedy, but belittling his efforts shows neither proper judicial temperament nor appropriate respect for the Court itself. Some commenters excuse this because they disagree with the ruling: Irrelevant. Check your rationalizations, especially #2. The “They’re Just as Bad” Excuse, or “They had it coming.”

41 thoughts on “Unethical Quote of the Month: Justice Antonin Scalia

  1. I’m glad you posted this.

    I too was struck by his intemperate language – but even moreso by the way he was called out by Chief Justice Roberts.

    Scalia, of course, wrote in this decision that the words “established by the State” had to be taken literally.

    Roberts, in his majority opinion, made a point of two times citing none other than Scalia as having said this, only last year:

    “the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

    And that wasn’t enough. Roberts also quoted Scalia from the 2012 Obamacare debate as follows:

    “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

    I am astonished that Scalia would have the pure gall to:

    1. Contradict himself so blatantly and obviously
    2. Then get all huffy and hissy-fittish
    3. Reveal himself so blatantly willing to change his mind depending on the politics of the issue in front of him.

    But it’s at least as astonishing to see the Supreme Court Justice administer the equivalent of a public smackdown.

    You gotta wonder what the dialogues are like lately in the back rooms of the Supreme Court.

    • You’re thinking of yesterday’s decision, about Obamacare. Having skimmed the dissent, I thought he did an adequate job explaining that looking at the whole law did not save Roberts’ opinion. There were multiple other instances of the same phrase in this law having to be read the other way and only this single solitary instance of “established by the state” being interpreted out of existence, among other things.

      He also noted that it’s not the court’s job to save laws from congressional mistakes. Just because treating the words as if they mattered made the law dysfunctional doesn’t mean they can blithely ignore it.

      Basically, I don’t see any self contradiction, or evidence that he changed his mind based on the politics on this issue. (His view of the Raich decision on the other hand…)

      Overall, I think that dissent was more logically consistent than the final decision.

      I haven’t skimmed this one yet, so can’t really comment. I suspect it’s another instance of a badly formed decision in support of a laudable goal.

      • You’re right, of course; I was mixing up my decisions, good catch.

        I guess “logically consistent” is in the eye of the beholder; I’m with Roberts, it looked like a glaring flip-flop to me, which is precisely why the the Chief Justice singled it out.

        • I could see why you might think that, but I had already seen the dissent where he agreed with the concept, and then proceeded to explain at length why it doesn’t work in favor of the decision. You might want to skim the decision and dissent a bit.

          I think the claim that “… State and Federal Exchanges would differ in a fundamental way if tax credits were available only on State Exchanges” confuses the structure of the exchange with inputs into it (data versus code in programmer terms). The exchange has to provide a mechanism to provide any credits available, but it is not the source of those credits. The quoted point seems to be crucial to their claim that it is ambiguous because of the phrase “such exchanges”. The effects of the exchanges would certainly differ, but their structure would be the same either way.

          I think the decision has a point about inartful drafting… but the proper response is to hold the law to it’s wording if reasonably possible. As it is, I dislike the moral hazard presented by protecting congress from dealing with the consequences of passing a huge law behind closed doors, using reconciliation and other methods that guarantee a complicated mess.

          • “…the moral hazard presented by protecting congress from dealing with the consequences of passing a huge law behind closed doors, using reconciliation and other methods that guarantee a complicated mess.”

            I think this point is very well taken, well said.

            • The opinion specifically mentioned it as contributing to the issues, and was part of the reasoning for treating it as a drafting error, which is what really got me thinking along those lines. It’s like deciding a driver isn’t responsible for his accident because he was too drunk to know better. It also reminds me of the murderer who kills his parents then pleads for mercy because he’s an orphan. Neither are perfect analogues, but there are overlapping elements I think.

              I feel bad for diverging so much from the topic of THIS post.

          • I see this as the end of the rule of law and the legislative process. It was clear that only the State exchanges were supposed to give subsidies, it was the carrot to get them to set up such exchanges in the first place. It was explained so before the passage of the bill and that is what the wording said. That is why the administration had people telling the states that if they didn’t set up their own exchanges, their citizens would pay for the subsidies, but would get no subsidies themselves. That is why ‘state’ was defined in the bill. Washington D.C. was defined as a state for the purposes of the bill, as were some territories, but the federal government wasn’t. It sems clear that when most states didn’t go for the carrot, the President saw that this law would be a total disaster, so he gave subsidies on the federal exchange in defiance of the law. Now that he has given so many people bribe money, enforcing the law and requiring those 60 million people to pay back the money they illegally received would be a big mess. It would probably lead to riots and numerous deaths. The court seems to have taken the easy way out, allowing the executive to unilaterally modify a law, yet again, when the President doesn’t like how it works.

            So, why should I pay taxes if it is just going to be given to whatever groups the President wants? My representatives didn’t vote for a law that allowed this, no one’s representatives did, just like no one voted for an ACA that excluded employers with between 50 and 100 employees. The law is now made by the President and the Supreme Court backs him up because they don’t have the guts to make the hard calls. With Democracy seemingly at an end, how many people are going to be pushed over the edge and resort to violence? It is going to seem like the only recourse to some people. Congress can’t enforce the laws, the executive refuses to, and the Court seems too cowardly or partisan to do anything about it. I am afraid the Charleston shooting may not be an isolated example.

  2. As Scalia points out:
    “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 Constitution 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.”

    I nominate the above quote from Scalia as the Ethical Quote of the Year.

    Anthony Kennedy pulled a bait and switch from his Windsor decision of two years ago, in which he said, “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”

    Kennedy seems to have decided on his desired outcome, and then pulled his reasoning from his butt to justify the outcome. The dissents are far more compelling in an intellectual and logical sense than Kennedy’s ruling.

    • Scalia is at least raising a Big Issue here – arguing for direct representation of people via their elected representatives. A powerful point indeed.

      However, when it comes to individual civil rights, legislatures have a dismal record. They are bastions of majorities, with both feet mired conservatively in the past. Progress in these areas has traditionally come from the executive or the judicial branch – think voting rights for women, the Emancipation Proclamation, Brown v. Board of Ed., gays in the military.

      It may be an irresolvable argument – liberal vs. conservative – and there’s been no more divisive issue between them than the growth in civil rights accorded to varying types of citizens.

      Scalia says “My Ruler” is 9 supreme court justices. A lot of people are are glad it’s them instead of the state legislatures’ versions of Darrel Issa, John Boehner et al.

      • Scalia is at least raising a Big Issue here – arguing for direct representation of people via their elected representatives. A powerful point indeed.

        Erm, then he’s over 200 years too late. That issue was raised in Philadelphia and a resounding NO was the answer. And thank God. But I think your characterization of what he is raising is errant anyway.

  3. Are you kidding me? Scalia is a hero. Five lawyers just created a constitutional right out of thin air. Gay marriage is good policy, in my opinion, but to have the Supreme Court declare that it is in the Constitutuon is just absurd. It was a gross abuse of power, unimaginable even five years ago. Scalia called them on it. Good. Who cares if he and Kennedy like each other?

    And it is just a shot to say it is time for Scalia to retire. Are you really suggesting that he is unfit to serve because of advancing age? Read his dissents from the 1980’s — he has always been caustic in his dissents.

    • 1) States have the power to enact ANY laws they see fit that are not listed in the powers enumerated to the National level of government. (10th Amendment)

      2) A whole slew of states, eventually all of them, decided they could issue marriage licenses. Nothing happens without a law. To the State, a marriage is simply an extremely exclusive economic contract. They decided to regulate such contracts in such a way as to confer benefits to the people engaging in that particular contract – tax breaks, decision making power, property security, etc

      3) The nation has determined that, though States can make whatever laws they want as per #1, those laws can’t impact people disparately based on certain criteria. (14th Amendment).

      4) A whole slew of states, most of them, decided that marriage licenses could only go to one class of people.

      5) As per #2, that conferred privileges on a single class of people. A violation of the 14th Amendment.

      How exactly was this not in the Constitution?

      • You make about as good an argument as can be made. But if the law is rationally related to a legitimate state interest then the states can treat the genders differently for purposes of marriage. Marriage has been between a man and women everywhere until very recently. Some of us think it is a good idea to jettison this approach but that does not mean that some states can’t conclude that they prefer the traditional definition of marriage to encourage child-rearing by the biological parents. I don’t think it will hurt child-rearing, but that is a policy judgment.

        I would also note that the bulk of the majority decision, and the part that drew Scalia’s most caustic remarks, concerned substantive due process, not equal protection. I agree that if the opinion had to be written, equal protection was the way to go. At least a cogent argument like the one you made is possible. Substantive due process as applied here is truly a policy judgment of the five judges.

        • Furthermore… nobody addresses the bait-and-switch from the Windsor decision two years ago, in which Kennedy declared that marriage was to be a decision made by the states.

          If the Constitution truly required gay marriage in all fifty states, then why didn’t he do so in 2013? Kennedy arguably had an ethical duty to do so then if he felt that was the case.

          Congrats, Jack. You got the end result you wanted. Can you live with Justice Kennedy’s bait-and-switch, as well as the clear bias of Ginsburg and Kagan?

          Enjoy the early 21st Century’s Roe v. Wade.

          • It isn’t about requiring gay marriage though the wording is grossly in that arena.

            It’s about when states do decide to license marriages, they can’t deny a class of people.

            The wording should have included phraseology to the extent that any state wishing to license marriages can’t discriminate but that states aren’t required to license any marriage if they decide licensing isn’t the way to go.

        • Now that I have read the opinions, the failure to use the Equal Protection argument is mystifying. Many legal analysts, non-gay, non=activist, moderates who could be objective, thought this was the obvious approach, and so did I. But the fact that the majority didn’t use it doesn’t mean it isn’t still the reason why banning gay marriage is discriminatory.

          The child-rearing stuff, Dan, is crap, and since it’s crap, it can’t constitute a valid state interest. If it’s valid, it has to make some sense. We care about children, so we want to have fewer legally sanctioned couples who can have them? When an alleged state interest is based on nothing but persistent belief in ancient taboos and bias, no court should take it seriously. Roberts, for one, falls back on the “long-held definition” argument, which is also nonsense in the context of this debate. The state can call marriage anything it chooses, and it can choose to call anything marriage: it’s not bound by cultural or religious tradition. It can call it anything, that is, as long as what government benefits whatever it is conveys or takes away doesn’t unfairly and harmfully discriminate and treat one citizen better or worse than another based on things the government has no business paying attention to—like a persons race or gender or height or intelligence.

          • If child-rearing rationales are “crap” then the legislature can change the law. We all come from a man and a woman. The state has a legitimate interest in children living with their biological parents, even though other arrangements often work well, even though some biological parents are bad parents and even though many marriages don’t result in biological children. Does this interest justify limiting marriage to a man and a women? I don’t think so, but this is a democracy. What is so special about the five people in the majority that they get to decide for the rest of us?

            • I’d love to hear from the lawyers on this one: why is this a court issue rather than a legislative issue?

              (I know the political answer – legislatures tend to be regressive and oppressive on behalf of the majority – but I’m wondering what legal reasoning says?)

            • Your last question first: What is so special about a single judge or 12 jurors who make life and death decisions?

              Government needs a compelling interest to justify a significant equal protection breach, and the child rearing, procreation—yes, crap—don’t fly at all. The legislature doesn’t get to tell you you can be a lawyer and I can’t because Greeks are untrustworthy, unless there is some real, valid, substantive indication that they are. There isn’t, and such a prohibition would fail. The argument that same sex couples are less fit to raise children (or that opposite sex couples are more fit) is based on zip except bias. That’s when the courts can step in on constitutional grounds.

              • That is a bit of a strawman. The rational basis is not that same sex couples make worse parents than opposite sex couples — it is that children raised by two biological parents is something the state has an interest in encouraging, and conferring special status to opposite sex unions is one way of encouraging the two biological parents to say together and raise their children.

                You suggest that the argument against same sex marriage is “based on zip except bias.” This is precisely the argument that needs to be made in order to sustain the decision on equal protection grounds. Respectfully I think that is bridge too far, and I suspect they deliberately de-emphasized equal protection to avoid going there.

                • Dan Abrams:

                  “That is a bit of a strawman. The rational basis is not that same sex couples make worse parents than opposite sex couples — it is that children raised by two biological parents is something the state has an interest in encouraging, and conferring special status to opposite sex unions is one way of encouraging the two biological parents to say together and raise their children.”

                  And if the government only gave marriage licenses to biological parents of children, then you’d have a point. They don’t. In fact, I’d wager the vast majority of couples who don’t meet the “biological parents” non-requirement for marriage are opposite-sex couples. We license marriage to people who have children from previous relationships, the elderly, the infertile, the willingly child-free, etc. etc. etc. The idea that suddenly gay marriage will break the relationship between marriage and biological child-rearing is simply ridiculous.

    • Not this caustic. If he were not a SCOTUS judge, a judicial ethics committee would call him on this crap—it’s unnecessary and wrong. He’s a good enough writer without being insulting to his colleagues.

      He’s also wrong. Equal protection is in the Constitution, all right, and it makes conferring the benefits and legitimacy of marriage based on gender unconstitutional, as the majority of lower courts have already ruled.

      Scalia is no longer able, apparently, to tolerate any view of the Constitution that wasn’t on the mind of the Founders. I think that approach has always been wrongheaded, but a useful balance to the Sotomayors and Ginzbergs, who think the Constitution should be ignored at will. His kind of bile hurts the operation of the entire institution, and Roberts was right to slap him down.

  4. My fear is that this doesn’t represent the end of the process, where gay folks will now settle down with marriages and mortgages and occasional misery like the rest of us (although some will), but instead the opening salvo in a wider war by the left agenda (not the gay agenda) against faith and traditional morality. In this wider conflict the gay community is a tool of the left, not the instigator itself. It speaks of a different agenda when gay couples call around to venues until they find one that says no, then sues, or insists a bakery they have not frequented fill their needs. The next step is probably suing churches and attacking their tax-exempt status. Only time can prove this out, but I think the writing is on the wall.

    • I have a few things to note.

      First and most important, after the ruling crowds sang the Star Spangled Banner, that shows a high degree of satisfaction. I was at one of the post-Lawrence celebrations and at that we sang We Shall Overcome.

      Second, yes there are a few things left to fight for and I’m going to ask you to join that struggle. Ready? No person should be denied employment or lose their employment based on sexual orientation, with the usual exceptions for houses of worship though obviously not secular businesses owned by religious institutions. Obviously a Catholic school will want to stick to Catholic teachings, while a getaway resort owned by Baptists can’t really complain in good faith (pun intended) that having a gay waiter on staff in any way prevents them from worshiping as they choose.

      Finally, tax exempt status. I’m aware of one case in New Jersey from a few years ago. It sticks in my mind because the person who threw at me was a huge pain both in refusing to offer the citation demanding that I find the info myself and by giving me false information to go on, claiming it was about a church when it was not. I’m not going to do that to you https://www.aclu-nj.org/legaldocket/pastervogcma/ . You’ll note the tax break was dependent on allowing the land to be used. I expect more of the same with the same results over the next few years till the people who’ve been heavily invested against marriage equity find a new cause.

      For personal reasons I hope that cause isn’t trans related. I hate being stuck between the proverbial Magneto and Senator Kelly.

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