In it, but not of it. TPM DC

Scalia Rages Against Supreme Court's Gay Rights Ruling

Yskismeoid8zc8vhqcdh
AP Photo

1) 'Diseased Root'

"We have no power to decide this case," Scalia wrote. "And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America."

"The Court is eager -- hungry -- to tell everyone its view of the legal question at the heart of this case."

2) 'Jaw-Dropping,' 'Black-Robed Supremacy'

"That is jaw-dropping. It is an assertion of judicial supremacy over the people's Representatives in Congress and the Executive," he wrote, adding that the framers of the Constitution created a judicial branch with limited power in order to "guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive."

3) 'No Justification' For Obama Administration

Chiding the Obama administration for refusing to defend DOMA in court, Scalia scoffed, "There is no justification for the Justice Department's abandoning the law in the present case. The majority opinion makes a point of scolding the President for his 'failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions ... But the rebuke is tongue-in-cheek, for the majority gladly gives the President what he wants."

4) 'Legalistic Argle-Bargle'

Referring to the issue of standing, Scalia wrote, "I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a 'prudential' aspect of the sole Article III requirement of standing."

"As I have said, 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."

5) 'Unimaginable Evil This Is Not'

"To be sure, if Congress cannot invoke our authority," Scalia wrote, "then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation." He was referring to the House Republicans' decision to defend DOMA after the Obama administration began arguing it should be struck down.

6) 'Rootless And Shifting'

Excoriating Justice Anthony Kennedy's majority opinion against DOMA, Scalia declared, "There are many remarkable things about the majority's merits holding. The first is how rootless and shifting its justifications are."

As one example, he continued, "the opinion starts with seven full pages about the traditional power of States to define domestic relations--initially fooling many readers, I am sure, into thinking that this is a federalism opinion."

7) 'Confusing'

Scalia continued to criticize Kennedy's opinion, calling it "confusing" on the core issue.

"Moreover, if this is meant to be an equal-protection opinion, it is a confusing one," Scalia wrote. "The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality."

8) 'Moral Disapproval Of Same-Sex Marriage'

"As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms," Scalia wrote. "However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid -- indeed, downright boring -- justifying rationales for this legislation. Their existence ought to be the end of this case."

9) 'Wild-Eyed Lynch Mob'

Accusing the majority of demonizing DOMA's supporters, Scalia wrote, "I imagine that this is because it is harder to maintain the illusion of the Act's supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them."

He continued: "In the majority's telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one's political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad."

10) 'The Court Has Cheated Both Sides'

"Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many," Scalia concluded. "But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent."

UNITED STATES v. WINDSOR, EXECUTOR OF THE ESTATE OF SPYER, ET AL.

About The Author

Rbzswuatscnipmb5upus

Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.

Progress overnight on deployment of new commenting system. We hope to move into a short beta-testing phase shortly.