Justice Antonin Scalia is well-known for his strongly held views, his pithy phrases, and his sometimes unbridled criticisms of his fellow justices. In 2015, he seemed to increase greatly the number of opinions in which he also claimed that the opposing views were not only wrong but that they would do serious damage to the Supreme Court as an institution and/or to our Constitution. Here are highlights from the times Scalia cried wolf.
At issue in Zivotofsky v. Kerry was the constitutionality of a statute that required the State Department, when issuing passports to children of U.S. citizens born in Jerusalem, to identify the children’s birthplace as Israel. The executive branch claimed that the law would interfere with the president’s exclusive power to recognize foreign government, because all presidents have treated Jerusalem as not belonging to Israel. The majority of the court agreed with the president, and Scalia dissented. He began with the observation that “the law of England entrusted the King with the exclusive care of his kingdom’s foreign affairs. … The People of the United States had other ideas when they organized our Government.” He then objected that the majority’s “holding puts the implied power to recognize territorial claims … on a higher footing than the express power to make treaties.” As he saw it, the Supreme Court’s functional analysis “will systematically favor the unitary President over the plural Congress in disputes involving foreign affairs,” which will result in a foreign policy “perhaps as effective as that of a monarchy.” But, he continued, “It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty.” (Emphasis in original.)
To no one’s surprise, Scalia dissented in Obergefell v. Hodges, which struck down all bans on same-sex marriage: The “substance of today’s decree is not of immense personal importance to me,” he wrote, but he wanted “to call attention to this Court’s threat to American democracy.” What was “of overwhelming importance, however, [is] who it is that rules me. 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.” As he read it, the majority opinion “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.” Viewing the decision as taking power from the people and “unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court,” he concluded that “we move one step closer to being reminded of our [the People’s] impotence.”
King v. Burwell concerned terms of the Affordable Care Act, not the Constitution. The majority did what Scalia said were “somersaults of statutory interpretation” that “will be cited by litigants endlessly, to the confusion of honest jurisprudence.” Justice Scalia’s dissent also competes with itself for which errors were the most egregious. Among his accusations about the majority’s opinion were that “[w]ords no longer have meaning” and that it “is hard to come up with a clearer way” to say the opposite of how the majority read the law. When the majority relied on context, Scalia responded that “[f]ar from offering the overwhelming evidence of meaning needed to justify the Court’s interpretation, other contextual clues undermine it at every turn.” His introductory phrases in response to the majority’s arguments further illustrated his increasing displeasure:
- “Making matters worse”
- “It is bad enough for a court to cross out [words]”
- “It is probably piling on to add”
- “[T]he Court comes up with feeble argument after feeble argument”
- “Roaming even further afield from [the statute]”
- “Least convincing of all”
- “For its next defense of the indefensible”
- “This reasoning suffers from no shortage of flaws”
- “Compounding its errors”
- “Worst of all for the repute of today’s decision”
- “Even less defensible, if possible”
Scalia summed up his concern over the impact of the decision this way: “Today’s opinion changes the usual rules of statutory interpretation for the sake of the Affordable Care Act” because of “the Court’s decision to take matters into its own hands” instead of allowing Congress to address whatever problems there might be.
Scalia’s problem with the majority’s opinion in Ohio v. Clark, which allowed a child’s statements to a teacher to be used as testimony in a criminal case, was not with the result but with certain dicta. He wrote a concurring opinion in the case “to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave” in 2004. As he read the majority opinion, it attempted a “categorical overruling” of an earlier line of cases. He concluded that “the peculiar phenomenon of a Supreme Court opinion’s aggressive hostility to precedent that it purports to be applying” may be sufficient to enable the majority to do indirectly what they cannot do directly.
Perhaps the most overstated of Scalia’s dissents was Alabama Legislative Caucus v. Alabama: “Today, the Court issues a sweeping holding that will have profound implications for the constitutional ideal of one person, one vote, for the future of the Voting Rights Act of 1965, and for the primacy of the State in managing its own elections.” He predicted that the “consequences of this unprincipled decision will reverberate far beyond the narrow circumstances presented in this case,” suggesting that the majority had made a major change in the law. However, his disagreement was only over whether it was proper to allow the plaintiffs to make certain allegations in the Supreme Court that they had omitted below and thus keep the case alive. How that irreparably damaged the principle of one person, one vote is far from clear.
For Supreme Court decisions, the consequences of one outcome rather than the other are rarely earth-shaking. Scalia seems increasingly to conclude that the other side is not simply wrong but that its position will do serious long-term damage to our Constitution and the Supreme Court as an institution. Based on these statements, it is fair to conclude that Scalia is crying wolf too often and that even if the majority’s decisions are misguided, the country will somehow survive.