Antonin Scalia, Gay Marriage

Reading The Mind Of Justice Scalia

Justice Scalia is so mad about Obamacare and gay marriage that he's slowly devolved into Dr. Seuss.

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Reading the dissents in King and Obergefell, I wondered what it would be like to be in the mind of Justice Scalia. So I helped him write an essay. Apologies, Justice Scalia, if I didn’t read your mind precisely right.

I now present to you “Reading the Mind of Justice Scalia,” by LawProfBlawg.

I’m so mad I could spit.

When I think about the Affordable Care Act and same sex marriage decisions of the Supreme Court of the United States, I could just spit.

Whether it is the jiggery-pokery of the majority’s interpretation of the Affordable Care Act, a sheer hodge-podge of supercalifragilisticexpialidocious activism, or the egotistical hubris of the humdingery of the bippo-no-bungus arguments hinted at in the majority’s substantive due process arguments in same-sex marriage, they portend deeply troubling times for American democracy.

We were having a perfectly lovely discussion of same sex marriage, and the majority ruined it. It was very much like watching pro wrestling. Sure, there were people killed and beaten, but this is not of immense personal importance to me. It is not as if the decision made me wear a barbaloot suit or something.

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What troubles me is who rules me. NO one rules me. That’s who. But I’m tired of writing scathing dissents. I want to write majority opinions, darn it. When I write the opinion, it is based upon STRICT TEXTUALIST interpretation. Specifically, I stare at the text, and its meaning leaps out to me. I am the sole decider of text. Those egotistical justices in the majority don’t get that. That’s clear from its contortionist ACA decision in King. It makes me so mad I want to bang my head against a truffula tree.

I mean, I sat there with Alito. We sat there we two. And we said, “Oh, I wish we had a decision or two. Too conservative for R.B. Goldberg, too textualist for Kennedy, too gruff for Breyer, and for Sotomayor too fiffer-feffer-fuff.”

Gay means happy. That’s what it meant at the time of the founding fathers and it still means that today. Let me be clear. I’m not gay. I’m not happy in any sense of the term (as I can find in the 100 dictionaries in my possession). You can’t just write into the Constitution something that didn’t exist.

If you believe in democracy, you should be incensed with the Court’s decision in Obergefell. Same-sex marriage came. Despite my protestations, somehow it came just the same. As I stand here with my feet ice cold as the snow, I ask myself: How can it be so? It came without statute. It came without text. It came without dictionary, constitutional amendment, or context. I keep puzzling and puzzling ‘til my puzzler is sore, and then I think: The majority is an egotistical bore!

As I said, I’m deeply concerned about a majority of nine justices deciding the fate of American democracy in a way I wasn’t in Bush v. Gore or Citizens United. Upon what basis has the majority determined that all of a sudden something exists in the Constitution that didn’t before? It was like Justice Horton heard a Who!

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I’m going to skip over the discomfort that talking about decisions of the 1960s might cause me. Or about Citizens United or Bush v. Gore. I don’t want angry calls on my whisper-ma-phone.

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here. Email him at lawprofblawg@gmail.com.

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