WASHINGTON — As one of the four justices that dissented from today’s U.S. Supreme Court ruling declaring that all 50 states must legalize same-sex “marriage, Justice Antonin Scalia issued a sharp rebuke of his colleagues’ arrogance, warning that “pride goeth before a fall.”
“The opinion is couched in a style that is as pretentious as its content is egotistic,” he wrote. “It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the court to do so.”
Scalia was speaking of his disapproval of five black-robed justices issuing an edict that he opined was “highly unrepresentative” of the nation and “hardly a cross-section of America.”
“Today’s decree says that my ruler, and the ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court,” he said. “And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the people of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves,” he said.
Scalia then began to speak with sarcasm, stating that he believed the justices’ ruling reeked of arrogance.
“[W]hat really astounds is the hubris reflected in today’s judicial putsch,” he said. “The five justices who compose today’s majority are entirely comfortable concluding that every state violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.”
“They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since,” Scalia continued. “These justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry.”
“And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution,” he said.
Scalia remarked that the court’s reasoning, which he likewise criticized, was couched in personal preference and not based upon law.
“[The majority’s opinion] stands for nothing whatever, except those freedoms and entitlements that this court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this court really dislikes,” he wrote. “The world does not expect logic and precision in poetry or inspirational pop philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this court’s reputation for clear thinking and sober analysis.”
The Roman Catholic justice opined that the court should have left the matter up to the states, rather than using its power to force the nation into bowing to the will of five men and women, thus confiscating power from the people.
“Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall,” he wrote. “With each decision of ours that takes from the people a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this court—we move one step closer to being reminded of our impotence.”
In addition to Scalia, Justices John Roberts, Clarence Thomas and Samuel Alito all issued dissenting opinions on Friday, with each one building on each’s other criticism of the majority.