On Scalia’s Showoff Dissents

Longtime readers won’t be surprised, but as far as the “blistering dissents” often praised even by liberals I’m pretty much in agreement with this:

This is an odd sense of wit. Scalia is not just wrong. He is wrong in the same way that the thousands of anonymous conservative Twitter accounts with default egg avatars swarming liberal politicians and pundits are. He writes his dissents using the same jokes and the same arguments. If Scalia’s ostensibly witty writing displays a keen legal mind, then we are witnessing the blossoming of a new age of legal scholarship in Hillary Clinton’s at-replies. Because Antonin Scalia is, essentially, a Twitter egg.

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In reality, though, there was nothing creative, new, or even sick about Scalia’s burn. The SCOTUScare joke is rather dumb, very obvious, and has been kicking around the right-wing #TCOT Twitter bunker since at least the time of the Supreme Court’s first Affordable Care Act decision in 2012. Here, for instance, is Wall Street Journal Editorial page writer David Feith using the word in a tweet from the day the 2012 case was decided…

…Despite Feith’s conservative bona fides—he’s the son of Iraq War era Under Secretary of Defense and “dumbest fucking guy on the planet” Douglas Feith—the tweet earned no retweets, no favorites, and no replies. And with good reason (sorry Dave!). Scalia’s SCOTUScare crack, like many of his other King one-liners from “jiggery-pokery” to “pure applesauce,” is straight from the dregs of modern American political commentary, not even worthy of the low standards of the National Review. If an angry Twitter egg tweeted “we should start calling it scotuscare u libtard” at a journalist, the best he could hope for would be an ironic retweet. Scalia’s dissent might as well have been a Benghazi acrostic.

For Scalia, replacing rigorous legal analysis with dumb jokes and angry tirades is nothing new. For years, he has been writing dissents that sound like something from the POLITCO comments section, or at best a Glenn Beck book. Take his dissent to the Supreme Court’s 2003 decision in Lawrence v. Texas holding that laws criminalizing same sex intercourse are unconstitutional. Scalia’s response to a detailed majority opinion tracing the history of the rights of gay persons was a screed that read more like your drunk uncle’s Thanksgiving rant than cogent legal analysis. Scalia bemoaned a decision that was “the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He goes on to hit virtually every tired homophobic talking point, from fearmongering over “[gay] teachers in their children’s schools” to “let me be clear that I have nothing against homosexuals.” [This last one is even worse in context — “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means.”–ed.] This is by-the-numbers conservative punditry that was played out even twelve years ago.

Obergefell is a particularly good place to start, because all of the Court’s most conservative justices filed dissents and Scalia’s was far and away the least substantive. Its 9 pages essentially boil down to one simple argument: it’s wrong for an unrepresentative committee of nine lawyers to make policy choices not clearly compelled by the Constitution. Given the actually existing practice of judicial review in the United States this argument is not merely trite but useless, offered in bad faith, and from someone who joined Shelby County (after embarrassing himself at the oral argument) is intolerable.

Aside from the feeble judicial restraint argument, Scalia devotes space to cruelly mocking Kennedy’s literary style. Now, I agree that Kennedy’s opinion was hardly a model of judicial craft, and I could have done without some of the Hallmark philosophizing of its first pages. Having said that, Scalia responding to these passages with a bad 50s take-my-wife-please comedy routine is self-refuting. The most over-the-top attacks on Kennedy also collapse on themselves:

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.

First of all, the quote hardly justifies the vitriol — a little pompous, but I’ve seen worse, and the underlying point is coherent and accurate. But the “hide my head in a bag” punchline can’t help but remind us of another Kennedy-authored opinion Scalia joined and has belligerently defended: a little thing called Bush v. Gore. I think we’ve established beyond doubt that Scalia is incapable of embarrassment. And say this for Kennedy: in his sometimes awkward and pretentious way, he was taking the text and purpose of Section 1 of the Fourteenth Amendment seriously, making the case against invidious discrimination and the arbitrary denail of fundamental rights. Sometimes, as in the concluding paragraph, it even works well enough:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Not exactly how I would have written it, but I’ll take it over “Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?” any day.

And then there’s Scalia’s assertions that “the stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis” and “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.” This is a little much from someone who the previous day issued a dissent larded with a bunch of anachronistic euphemisms for bullshit in a desperate attempt to mask the fact that the argument he was making was an incoherent mess with the end of advancing a nakedly partisan campaign to take access to health care away from millions of people. (In a rare-moment of self-awareness, Scalia attempts to pre-empt this obvious response: “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression.” How convenient!) Roberts could have devoted multiple paragraphs to Scalia setting aside his own principles of statutory interpretation to produce a nonsensical reading of a law that dovetails with his own policy preferences, but he just let the multiple cites from Scalia opinions speak for themselves. Sometimes, when rhetorically twisting the knife, less is more.

Toobin: “In dissent, Scalia cranked up his increasingly tired act as the Court’s sound-bite generator.” Now that’s good writing.