As an experienced appellate attorney, I agree generally with Erwin Chemerinsky’s July 16 column “ ‘Snide Scalia’ set a bad precedent” regarding Supreme Court Justice Antonin Scalia’s offensive language.
In the same-sex marriage decision of Obergefell v. Hodges, however, his biting remarks are on point. He joined the dissenting opinion of Chief Justice Roberts but wrote “separately to call attention to this court’s threat to American democracy.” And, indeed, the Obergefell case threatens principles like the separation of powers, federalism and the rule of law. The other three dissenting justices spoke more politely along this line, but Scalia’s forcefulness brings needed attention to the threat.
In upholding same-sex marriage, the court’s majority in effect applied the idea that the end justifies the means. No matter what merit the end has in Obergefell, deficient constitutional interpretation should not be the means.
After thoroughly debunking the majority’s constitutional analysis, the chief justice invited those who favor the decision to celebrate their accomplishment. He then said, “But do not celebrate the Constitution. It had nothing to do with it.”
Thanks, Scalia, for highlighting the threat to American democracy.
William B. Crumpler