An essay posted the other day on the New Republic‘s website placed Antonin Scalia in not one pantheon but two. There’s the pantheon of Supreme Court justices such as Holmes and Cardozo, who “craft their words with brio, force, and wit.” Scalia’s “sneering tone” makes his dissents “hugely entertaining even where they are not rhetorically persuasive.” And there’s the literary pantheon. For Scalia possesses the “reactionary imagination” of a Yeats, Proust, Eliot, or Waugh. He shares with these “great Tory modernists . . . a terrible sense of longing, a palpable feeling for the world we have lost.”
Heer didn’t mention and apparently hadn’t read yet Scalia’s notorious dissent to the gay marriage ruling. Reprehensible? Some would say so, but not I. To me it’s a belligerent but harmless piece of writing, a magnificent tantrum. The target of Scalia’s venting isn’t gay marriage—a matter he insists is “not of special importance to me” (who believes him?)—but the Supreme Court itself. And I don’t mean the Supreme Court institutionally. Scalia goes after this Supreme Court, the one composed of himself and his eight colleagues. We’re illegitimate, he says. Justice Clarence Thomas joined his dissent. I’m surprised anyone did.
My regret about Scalia’s contemptuous eloquence is that it reacted to the wrong opinion. Kennedy might have written the last word on the constitutionality of gay marriage, but not the first word—the Supreme Court intervened after several appellate courts had separately addressed the question. And not the best word. That, in my view, was written in Chicago last year by the Seventh Circuit’s Richard Posner—Scalia’s bete noir.
Similarly, while many heterosexuals (though in America a rapidly diminishing number) disapprove of same-sex marriage, there is no way they are going to be hurt by it in a way that the law would take cognizance of. Wisconsin doesn’t argue otherwise. Many people strongly disapproved of interracial marriage, and, more to the point, many people strongly disapproved (and still strongly disapprove) of homosexual sex, yet Loving v. Virginia invalidated state laws banning interracial marriage, and Lawrence v. Texas invalidated state laws banning homosexual sex acts.
Posner did allow that Kennedy’s majority opinion might profitably have been ” longer on facts and shorter on sonorous quotations.” To that extent he agrees with Scalia, who in one of his several passages putting Kennedy in his place, wrote, “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”
