One thing that is undeniable about Justice Antonin Scalia is that his opinions were always a good read. He was a reliable conservative but every once in a while he broke rank. Most of all, however, Scalia, who died on Saturday, will be remembered for his scathing dissents.
We’ve sifted through many of his opinions. Here are five that are worth a read:
Lawrence v. Texas: In 2003, the Supreme Court Struck down an anti-sodomy law in Texas. In his dissent, Scalia said that the decision was the “product of a law-profession culture, that has largely signed on to the so-called homosexual agenda.”
Then, he went on to say that the decision essentially ended a practice of passing “moral legislation.” He wrote:
“If moral disapprobation of homosexual conduct is no legitimate state interest for purposes of proscribing that conduct, and if, as the Court coos (casting aside all pretense of neutrality), when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring, what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution.’ Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
Boumediene v. Bush: In this 2008 case, the majority decided that terrorism suspects being held in Guantanamo Bay, Cuba, had the right to seek their release in federal court. Justice Scalia delivered a scathing dissent saying that for the first time the Supreme Court was conferring constitutional rights to non-Americans. The decision, Scalia wrote, would cost American lives:
“The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court’s blatant abandonment of such a principle that produces the decision today.”
Hamdi v. Rumsfeld: Interestingly, in an earlier case, Scalia wrote against the Bush administration, saying the U.S. could not hold a U.S. citizen indefinitely without pressing charges or bringing them to trial. In his dissent, Scalia wrote that Congress could suspend some civil rights, but it had not done so when it passed an Authorization for Use of Military Force, as the plurality argued.
“If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court,” Scalia wrote. He concluded:
“Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis — that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.”
District of Columbia v. Heller: Scalia wrote the majority opinion in this 2008 case, which struck down a statute that prohibited the registration of handguns and made owners of other firearms keep them non-functional at home. Scalia wrote that law violated the Second Amendment. He wrote:
“We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.”
Obergefell v. Hodges: In 2015, the Supreme Court legalized same-sex marriage in the whole country with this case. As was his wont, Scalia delivered a scathing dissent saying the majority decision was a “threat to American democracy.” He wrote:
“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. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. 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.”