Antonin Scalia, Gay Marriage, Supreme Court

In Defense Of Justice Scalia

A defense of Justice Scalia's controversial joke -- from a prominent progressive law professor.

By  
on

Yesterday my colleague Staci Zaretsky turned a joke by Justice Antonin Scalia during Obergefell v. Hodges (aka the gay marriage cases) into a Quote of the Day. A protester interrupted the proceedings to cry out, “If you support gay marriage, you will burn in Hell! It’s an abomination!” After he got removed from the courtroom and Solicitor General Don Verrilli took a short pause before starting his argument, Justice Scalia quipped, “It was rather refreshing, actually.” Laughter ensued — as it often does when the witty Nino, shown by studies to be the funniest justice, opens his mouth.

But some people were not amused. Staci called Justice Scalia’s joke “tone deaf.” Some commenters criticized Staci, but they should really direct their criticism to Jeffrey Toobin, one of the nation’s leading legal journalists. In a piece for the New Yorker that Staci linked to, Toobin interpreted Justice Scalia’s joke as expressing agreement with the protester’s substantive views on homosexuality. Toobin called the justice’s joke “shameful,” making this argument:

It may have been just a joke from the senior Associate Justice on the Court, but what kind of joke — or was it really a joke at all? Scalia probably did think that the directness of the protester was bracing — “refreshing.” Indeed, there’s every reason to believe that Scalia more or less shared the protester’s view of the immorality of homosexuality, and that he regards the Court’s toleration of gay people as one of the great disasters of his nearly three decades as a Justice.

As the resident right-of-center writer here at Above the Law (along with Tamara Tabo), I’m here to defend Justice Scalia. And I’ll do so by simply directing you to this Bloomberg View piece by Professor Noah Feldman of Harvard Law School:

In context, Scalia was almost certainly saying that what he found “refreshing” was the moment of silence that followed the protester’s removal — in contrast to the constant give-and-take of an oral argument. I’d even argue that Scalia meant the word “refreshing” to be funny by reference to the old Coca-Cola slogan, “the pause that refreshes.” The court had just taken a pause — which is why Scalia instinctively thought, correctly, that a reference to refreshment would make people laugh.

Cutting the tension of the protester’s intervention with a light joke was itself an act of sympathy to the gay people in the audience…. [W]hen something terribly upsetting has just occurred, one way to defuse the tension is to make a joke. Sometimes the strategy is mistaken or misguided. Sometimes it might imply that one doesn’t take the offense seriously. But the person making the joke is often actuated by good intentions, not bad.

That seems quite plausible to me — and note that it comes from Professor Feldman, a leading liberal law professor who doesn’t agree with Justice Scalia on much.

Of course, it’s hard for those of us not present in the courtroom to judge between these competing views. One ATL tipster in the courtroom gave us a little color. “Everyone near [the protester] was worried about that guy,” this source said. “He kept sniffling and twitching nervously, as if he was getting ready to do something,” before his ultimate outburst. As for Justice Scalia’s joke, our reader did interpret the justice’s “refreshing” comment as referring to the substance of the protester’s views, not the pause or the interruption in proceedings.

Sponsored

But even conceding that Justice Scalia found the protester’s expression of opinion “refreshing,” is the joke actually offensive? I’m getting gay-married later this year, and I’m not offended. It seems to me a case of “Nino being Nino” and finding it “refreshing” to find someone else in the courtroom at One First Street who isn’t a moral relativist.

Readers, what do you think? It’s too bad we don’t have cameras in the court, but you can read the transcript, listen to the audio (start around 27:00), and then vote in our poll:

Did you find Justice Scalia's joke to be offensive?

View Results

Loading ... Loading ...

Scalia’s Joke Was Just a Joke [Bloomberg View]
Justice Scalia’s Shameful Joke [New Yorker]

Sponsored

Earlier: Justice Scalia Makes Completely Tone-Deaf Joke During Gay Marriage Arguments

Topics

, , , , , , , ,