[EL] Scalia's dissent

Wed Jun 26 13:51:07 PDT 2013

No, as he says in the opening paragraph of his dissent, I'm sure Justice Scalia was truly outraged that five members of the Supreme Court assumed the "power under the Constitution to invalidate this democratically adopted legislation."  Oh, wait . . . .

Fredric D. Woocher
Strumwasser & Woocher LLP
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Richard Winger
Sent: Wednesday, June 26, 2013 1:41 PM
To: Steve Klein; Joey Fishkin
Cc: law-election at uci.edu
Subject: Re: [EL] Scalia's dissent

Maybe Scalia was angry because something changed shortly before the final opinion came out.  Remember there was a rumor, about 10 days ago, that the DOMA decision was going to be a decision that the US Supreme Court (and the 2nd circuit) didn't have jurisdiction.  Maybe that was the way Kennedy was leaning, and then he changed his mind.  If Scalia had known this was coming way back when it was argued, it seems odd that he would still have such emotion.

Richard Winger
415-922-9779
PO Box 470296, San Francisco Ca 94147

--- On Wed, 6/26/13, Joey Fishkin <joey.fishkin at gmail.com<mailto:joey.fishkin at gmail.com>> wrote:

From: Joey Fishkin <joey.fishkin at gmail.com<mailto:joey.fishkin at gmail.com>>
Subject: Scalia's dissent
To: "Steve Klein" <stephen.klein.esq at gmail.com<mailto:stephen.klein.esq at gmail.com>>
Cc: "Richard Winger" <richardwinger at yahoo.com<mailto:richardwinger at yahoo.com>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Date: Wednesday, June 26, 2013, 11:44 AM
Justice Scalia's Windsor dissent does seem remarkably contemptuous of Justice Kennedy and his majority opinion -- even by Scalia's usual standards, which is saying something.

To me the interesting question is why, exactly, Justice Scalia goes so far out of his way to argue that a federal same sex marriage right is just around the corner.  He did a similar thing in his Lawrence dissent.  Here he goes even further.  Particularly in those block-quoted passages with all the cross-outs, Justice Scalia seems to be already imagining, even writing, what the future majority opinion will look like in a federal same sex marriage right case (from which he will dissent).

As a strategic matter, it's tricky to understand why a Justice would do this.  It seems to be maximizing the consequences of the ruling with which he disagrees, instead of limiting or cabining them.  I am curious about whether this sort of writing is aimed at a non-legal audience, and if so, for what purpose.  Is there a coherent political objective here?  Is it important to Justice Scalia to get people who agree with him to be (even more) scornful of Justice Kennedy?  Is it that Scalia just can't help himself?  These are not rhetorical questions at all -- I'm genuinely interested in why he would choose to magnify the apparent consequences of this opinion with which he strongly disagrees.

Joey

Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu</mc/compose?to=jfishkin at law.utexas.edu>

On Jun 26, 2013, at 12:38 PM, Steve Klein wrote:

> There's certainly room for everyone to be more civil, and I enjoy the heightened professionalism that's still part of the legal profession on the whole, but this isn't new for Scalia. A quick search reveals he ended his dissent in Boumediene v. Bush the same way in 2008 (joined by Roberts, Thomas and Alito). Especially in controversial cases, I think a little temper is inevitable.
>
> In a conversation a few months ago, I was confronted with the cliché "Congress these days is more divided than ever" line. Upon asking "Really? Was there a caning I missed?" I only received a blank stare. But seriously: that's when I'll get concerned.
>
>
> On Wed, Jun 26, 2013 at 11:21 AM, Richard Winger <richardwinger at yahoo.com</mc/compose?to=richardwinger at yahoo.com>> wrote:
> My e-mail is not really election-law related, but since Richard Pildes posted on the election law blog about today's DOMA decision, subject matter constraint is relaxed today!
>
> This morning I read Justice Scalia's dissent in Windsor, and I don't remember seeing such a bad-tempered dissent ever before in the US Supreme Court.  And, yes, at the end, he said, "I dissent", not "I respectfully dissent", the more normal ending line for dissents.  Chief Justice Roberts dissent in the DOMA case doesn't end with either line.  Alito ended his dissent with the normal "I respectfully dissent."
>
> Then we have the eye-witness accounts from a few days ago that Alito rolled his eyes while Ginsburg was reading her dissent in another case.
>
> Richard Winger
> 415-922-9779
> PO Box 470296, San Francisco Ca 94147
>
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> --
> Steve Klein
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