I read a lot of Justice Scalia opinions to write The Most Sarcastic Justice, and I have to say I really enjoyed reading those opinions—they were pithy, smart, insightful and blunt. Much more fun than say, reading a Breyer or Souter opinion with which I was much more likely to agree substantively.
But something’s changed more recently. Mark Tushnet puts it like this: “contrary to the seemingly widespread view that Justice Scalia is a splendid stylist, his snarkiness is getting tired.”
The question is this: has Justice Scalia’s rhetoric gotten more extreme, or is it just that it’s the same routine, over and over, applied in new cases. I think it is some of both.
The biggest problem is a kind of Chicken Little-ism. Every majority opinion with which Scalia disagrees is dishonest, it means the end of principled jurisprudence, it will lead to horrible consequences.
I think of the earlier opinion this term in the Alabama Redistricting case. There, Scalia opened his dissent with: “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 RightsAct of 1965, and for the primacy of the State in managing its own elections. If the Court’s destination seems fantastical, just wait until you see the journey.”
The opinion then went on to discuss standing and related issues, but NEVER explained even why he thought the opinion would lead to such dire consequences. We got the vituperativeness, but not the follow through.
It’s as though he’s tired. And it is making us tired of reading him.
Just wait till Obergefell.