There is a now-familiar ritual performed by liberal commentators and journalists following Supreme Court decisions that go their way: The praising of Associate Justice Antonin Scalia’s blistering dissents.
Today’s dissenting opinion, objecting to the court’s ruling, in Obergefell v. Hodges, that marriage is a fundamental right, was no exception. It was anticipated with an odd eagerness even before it was published, and its zingy lines were immediately picked over and marveled at. Scalia may be wrong, the mantra went—as it always does!—but he is intelligent and witty.
This is an odd sense of wit. Scalia is not just wrong. He is wrong in the same way that the thousands of anonymous conservative Twitter accounts with default egg avatars swarming liberal politicians and pundits are. He writes his dissents using the same jokes and the same arguments. If Scalia’s ostensibly witty writing displays a keen legal mind, then we are witnessing the blossoming of a new age of legal scholarship in Hillary Clinton’s at-replies. Because Antonin Scalia is, essentially, a Twitter egg.
Take his dissent to yesterday’s Supreme Court decision in King v. Burwell upholding the federal healthcare subsidies in the Affordable Care Act. In it, Scalia lets loose in a fashion that anyone familiar with his body of work would have expected; after excoriating the Court’s decision at length, he concludes “We should start calling this law SCOTUScare.”
As it was for today’s Obergefell dissent, the universal reaction from the press to Burwell dissent was adulation, if not for his conclusions, at least for what was perceived as clever bon mots and turns of phrase. Fox News, predictably, called it “one of the most scathing and linguistically creative dissents in recent memory.” But the paragons of our elite liberal media got in on the act too. The New York Times noted that with “SCOTUScare” Scalia “coins health law word.” Vox, always hip to the parlance of our times, described the SCOTUScare line as “Scalia’s sick burn.” Scalia: you may not agree with him, but you have to acknowledge his genius.
In reality, though, there was nothing creative, new, or even sick about Scalia’s burn. The SCOTUScare joke is rather dumb, very obvious, and has been kicking around the right-wing #TCOT Twitter bunker since at least the time of the Supreme Court’s first Affordable Care Act decision in 2012. Here, for instance, is Wall Street Journal Editorial page writer David Feith using the word in a tweet from the day the 2012 case was decided:
Despite Feith’s conservative bona fides—he’s the son of Iraq War era Under Secretary of Defense and “dumbest fucking guy on the planet” Douglas Feith—the tweet earned no retweets, no favorites, and no replies. And with good reason (sorry Dave!). Scalia’s SCOTUScare crack, like many of his other King one-liners from “jiggery-pokery” to “pure applesauce,” is straight from the dregs of modern American political commentary, not even worthy of the low standards of the National Review. If an angry Twitter egg tweeted “we should start calling it scotuscare u libtard” at a journalist, the best he could hope for would be an ironic retweet. Scalia’s dissent might as well have been a Benghazi acrostic.
For Scalia, replacing rigorous legal analysis with dumb jokes and angry tirades is nothing new. For years, he has been writing dissents that sound like something from the POLITCO comments section, or at best a Glenn Beck book. Take his dissent to the Supreme Court’s 2003 decision in Lawrence v. Texas holding that laws criminalizing same sex intercourse are unconstitutional. Scalia’s response to a detailed majority opinion tracing the history of the rights of gay persons was a screed that read more like your drunk uncle’s Thanksgiving rant than cogent legal analysis. Scalia bemoaned a decision that was “the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.” He goes on to hit virtually every tired homophobic talking point, from fearmongering over “[gay] teachers in their children’s schools” to “let me be clear that I have nothing against homosexuals.” This is by-the-numbers conservative punditry that was played out even twelve years ago.
Scalia dipped back into his Lawrence playbook in his dissent to today’s landmark gay marriage ruling, right down to the obligatory “I’ve got nothing against the gays but…” line “[t]he substance of today’s decree is not of immense personal importance to me.” He goes on to complain at length about the death of democracy, culminating with an attack on the makeup of the Court: “Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).” Attacking the Court for performing the very act of deciding the case before it is a well-worn Scalia trope, and no different from any other yahoo who starts shouting about “judicial activism” any time there is a decision he doesn’t agree with. His criticism of the individual justices was barely a step away from including the words “Hollyweird” and “Nancy Pelosi’s Democrat Party.”
But Scalia was at it even back in 1987, just a year after he joined the Court. In his dissent to a majority that ruled that a Louisiana law requiring creationism to be taught alongside evolution in public schools was unconstitutional, Scalia wrote that the law was really about “freedom from indoctrination,” explaining that “students would be free to decide for themselves how life began, based upon a fair and balanced presentation of the scientific evidence.” This false equivalence between scientific theory and faith-based belief is indistinguishable from the lame “Teach the Controversy” campaign that creationists have been pushing for years. But hey, at least back in 1987, Scalia hadn’t yet resorted to petty name-calling.
Or take his dissent to a 2002 case in which the majority ruled that the execution of persons with intellectual disabilities is unconstitutional. Scalia barked, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” Again, much like any other conservative talking head, Scalia’s issue was with the Court daring to do its job by deciding a case. And by 2012, Scalia was reduced to complaining that Obama’s immigration policy “boggles the mind” in a bizarre dissent read from the bench in response to the Court’s invalidation of Arizona’s immigration law. Meanwhile, even Scalia’s basic fact-checking has suffered. Last year, the Court had to correct his dissent in an environmental law case because he completely misstated the facts of a related case.
No different than his SCOTUScare remark, these dissents aren’t even interesting as political commentary except maybe to the sort of cable news watcher who demands to see a cavalcade of dopes shouting the same warmed over talking points at him 24 hours a day. The only notable difference is that over the last few decades, the quality of his prose has descended from Ann Coulter to r/politics. Care about gay rights? Get out of the ivory tower and think about our precious children! Worried about executing the mentally disabled? Step off with the judicial activism. Immigration reform? Thanks Obama.
Yet many of these same dissents have earned Scalia a reputation as a brilliant writer and thinker, even by people who might not agree with his worldview. A few years ago, the New Yorker collected a list of his “colorful quotes.” There’s even a whole book, appropriately titled Scalia Dissents, published in 2004. And today, the New Republic published a piece by Jeet Heer entitled “Antonin Scalia Is the Supreme Court’s Greatest Writer.” Heer describes Scalia as a “masterful writer” who is “widely admired” even by those who disagree with him, and he singles out the King dissent for the “little touches that make his writing so delightful.” Scalia, he notes, “wins us over to his words, if not his ideas.” Even the liberal New Republic thinks Scalia is great!
The truth is something closer to this: Scalia is a crank, and not a particularly original one. If his dissents are fascinating, it’s only because there is something curious and sad about a person who holds such a powerful position gleefully writing such garbage. It’s like hate-watching Sean Hannity, only with the added thrill of realizing that the speaker actually has some power over your life.
It’s time to stop treating Scalia as a brilliant jurist fighting the good fight against a culture that has left him behind. Instead, he should be treated like the ignorant buffoon he is more than happy to play in high profile cases.
Kept Simple is the pseudonym of a lawyer in North Carolina. You can follow him on Twitter at @kept_simple.