The Twilight of Antonin Scalia
The conservative hero's fiery 2012 dissent on same-sex marriage could be his most influential opinion—but not in the way he intended.
When the Supreme Court reassembles in October, the same nine justices will gather in the robing room, but the Court itself will be different. As one example, consider the position of Justice Antonin Scalia. For a quarter of a century, Scalia has been the conservative wing’s alpha dog. By June of 2014, that seemed to have changed.
Scalia entered the October 2013 term with panache, capturing headlines with his contrived confession to a New York reporter that “I even believe in the Devil.” On the last day of the term, Scalia was not the center of attention; he wasn’t even there. (The Court’s public information staff said that he was “traveling.”) His junior colleague, Samuel Alito, delivered two of the term’s highest profile opinions, in Harris v. Quinn and Burwell v. Hobby Lobby.
There was a new sheriff in town.
Since Scalia’s appointment in 1986, he has succeeded brilliantly in seizing the spotlight, establishing himself as a conservative hero. He told one questioner to “get over it!” when asked about Bush v. Gore, and responded to pro-choice protesters with an indecent Sicilian hand gesture. Confronted politely by a gay student, he snapped, “If we cannot have moral feelings against homosexuality, can we have it against murder?”
But Scalia may have outdone himself in his 2013 dissent in the case of United States v. Windsor. For years, he has been unrelenting in opposing constitutional protections for gays and lesbians. In his 2003 dissent in Lawrence v. Texas, Scalia warned darkly that the Court majority “has largely signed on to the so-called homosexual agenda” even though “many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their homes.”
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In Windsor, the Court’s majority struck down Section 3 of the Defense of Marriage Act, which forbade federal recognition of same-sex marriages that were legal under state law. In an opinion by Justice Anthony Kennedy, the majority concluded that its “purpose and effect” were “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”
The opinion was the triumph of the “homosexual agenda” Scalia had denounced. The majority opinion, Scalia wrote in a slashing dissent, meant the end of state laws restricting marriage to opposite-sex couples:
The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare ... desire to harm’” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
In retrospect, Scalia’s choice of words may have been a mistake.
Many dissents seek to limit the majority opinion, suggesting ways that lower courts can work around it. Chief Justice John Roberts offered one such attempt in Windsor, suggesting that “the Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation’ may continue to utilize the traditional definition of marriage.”
Scalia and his vivid language, however, grabbed the attention of press, public—and, it turned out, lower-court judges. With stunning swiftness, federal district judges have heard and decided challenges to state same-sex marriage bans, and by May 2014, a dozen judges had struck them down—first in Utah; then in rapid succession, Ohio, Illinois, Virginia, Kentucky, and even Texas. Judges young and old, male and female, gay and straight, Republican and Democrat, read Windsor and saw in it a logic that doomed state efforts to confine marriage to its “traditional” function as a union of man and woman. And some of what they read was not in the majority opinion but in Scalia’s dissent. In fact, about half of the opinions explicitly cited Scalia’s words. A representative passage by Judge Timothy Black, a district judge in Ohio, states:
And now it is just as Justice Scalia predicted—the lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot—i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no ....
No words Scalia would write in the October 2013 term would be remotely as important or influential as his 2012 “prediction.” That’s because disguised within the flamboyant rhetoric, he had made an important legal concession.
Roberts had insisted that the majority was relying on federalism for its decision. States could allow gay marriage, true; but they could also refuse it. If that was the right reading, a judge might weigh the traditional state authority over marriage against the interests of same-sex couples and their children—an issue the majority explicitly refused to decide—and come down in favor of the state. But if Scalia’s analysis was correct—that is, if opposition to same-sex marriage was based on a “bare desire to harm” gays and lesbians—a district judge would be legally bound to strike down laws against it. It is hornbook Equal Protection law that a “bare desire to harm” cannot justify any law, whether aimed at gays and lesbians or any other groups.
Scalia’s dissent strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.
Scalia has always been the intellectual quarterback of the conservative bloc. After the October term, that seemed no longer true. The three most important conservative wins were written by Roberts and Alito. By contrast, Scalia’s most prominent appearance was in a bitter concurrence, in which he agreed in the result of a case about presidential recess appointments, but reviled the majority for not cutting the power back to nothing. It was the first concurrence ever read from the bench as if it were a dissent, but that didn’t make it more significant.
His Windsor dissent, written the year before, was his most influential opinion of the term, doing its work in the lower courts. It may be remembered as the most influential opinion of his career.
In George Meredith’s 1883 poem, “Lucifer in Starlight,” the Son of the Morning, bored in Hell, soars forth to cast a huge shadow over “Afric’s sands” and “Arctic snows.” But as he soars higher toward heaven, those domains recede, until at last,
He reach'd a middle height, and at the stars,
Which are the brain of heaven, he look'd, and sank.
Around the ancient track march'd, rank on rank,
The army of unalterable law.
Scalia has had nearly 30 years to alter the law, and in many ways, he has succeeded. Yet the pique of confronting error, the pleasure of forecasting doom, has led him over and over into rhetorical excess, until at last his Windsor dissent helped cement one of conservatism’s most stinging defeats.
This post has been adapted from Garrett Epps's forthcoming book, American Justice 2014: Nine Clashing Visions on the Supreme Court.