WASHINGTON – The legal world may have become inured to wildly rhetorical opinions by Justice Antonin Scalia, but his dissent in the Supreme Court’s same-sex marriage decision Friday reached new heights for its utter contempt for the majority of his colleagues.
In the course of just nine pages, Scalia called the opinion of Justice Anthony Kennedy, with whom he has served on the court for 28 years, “pretentious,” “egotistic,” “silly,” and filled with “straining-to-be-memorable passages.”
“This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government,” Scalia wrote.
He mocked Kennedy’s opening sentence.
“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,” Scalia wrote. “The Supreme Court of the United States has descended … to the mystical aphorisms of the fortune cookie.”
In arguing that the court had usurped the right of states and citizens to decide the matter themselves, Scalia said the decision eroded democracy.
“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.”
Scalia derided the court’s makeup by way of saying they have no right to make social decisions for the nation.
“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 (where Kennedy hails from) does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”
Scalia warned that such opinions could somehow bring the court down.
“With each decision of ours that takes from the people a question properly left to them … we move one step closer to being reminded of our impotence,” Scalia wrote.