“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.”