This past Supreme Court term was a tough one for Justice Antonin Scalia. On a number of important cases, a majority of the Court rejected his extremist conservative ideology and upheld important laws and constitutional rights protecting women, the LGBT community, and working Americans. And Justice Scalia was none too happy with it.

Reacting to his colleagues, Scalia didn’t mince words. In Young v. UPS, a decision that protected pregnant women in the workplace, his “disagreement with the Court [was] fundamental.” In the Affordable Care Act (ACA) case that protected healthcare for millions, King v. Burwell (or, as Scalia prefers, the “SCOTUScare” case), the majority’s rationale was “jiggery-pokery” and full of “words [that] no longer have meaning.” (“Understatement, thy name is an opinion on the Affordable Care Act!”) And, according to Scalia, Justice Stephen Breyer’s call for abolition in the death penalty case Glossip v. Grossreject[ed] the Enlightenment[.]”

Most upsetting of all to Scalia was Obergefell v. Hodges, which recognized a constitutional right to marry for all same-sex couples. Scalia said the majority’s “pretentious” and “egotistic” opinion “diminish[ed] this Court’s reputation for clear thinking and sober analysis,” leaving its reasoning no better than the “mystical aphorisms of the fortune cookie.” Scalia would have preferred to “hide [his] head in a bag” than sign onto the Court’s opinion.

Through all the derision, hyperbole, and “straining-to-be-memorable” insults, it can be easy to confuse a Justice Scalia opinion with the latest commentary on Fox News. As Scalia’s extreme views become further marginalized on the Court, his writing reads more like conservative talking points than actual legal argument. See for yourself. Take our quiz.

Question 1: Will the Court do anything to save the ACA?

Scalia “The interpretive somersaults [of the Court’s two decisions on the ACA] will surely be remembered through the years. . . . And these two cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and that it is prepared to sacrifice all the usual interpretive principles—that it is prepared to do whatever it takes—to uphold and assist its favorites.” Rush

WHO SAID IT?

Justice Scalia

Congrats! Scalia made the statement when he announced his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.

But it would be easy to confuse the statement with that of a conservative pundit. Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”

Rush Limbaugh

Close! Before oral argument in the case, Rush Limbaugh said during his show, “At what point does the Constitution matter? This is a clear abdication. This is a clear violation. The entire Obamacare law itself is [unconstitutional], and should have been declared so, the first time before the court. The chief justice had to rewrite parts of it to make it appear to be constitutional and to save it.”

Scalia offered his version while reading his dissent from the bench—a tradition reserved for the cases where justices most strongly disagree with each other.

 

Question 2: Ministers being forced to marry same-sex couples?

Scalia “[I]s it conceivable that a minister who is authorized by the State to conduct marriage can decline to marry two men . . . ? Is it conceivable that that would be allowed? . . . I don’t see how you could possibly allow that minister to say, I will only marry a man and a woman.”

WHO SAID IT?

Justice Scalia

Congrats! During oral argument in Obergefell, Justice Scalia asserted that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim is baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.

But it would be easy to confuse the statement with one from a right-wing extremist. Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”

Jeremy Tedesco

Close! Jeremy Tedesco, counsel for the far-right Alliance Defending Freedom, recently said, “Many have denied that pastors would ever be forced to perform ceremonies that are completely at odds with their faith, but that’s what is happening here—and it’s happened this quickly.”

But it was Scalia who asserted during oral argument in Obergefell that, if the Court ruled in favor of same-sex couples, ministers would be forced to perform marriage ceremonies for same-sex couples. The claim was baseless. The constitutionality of same-sex marriage has nothing to do with the religious liberty of ministers.


 

Question 3: Is same-sex marriage a threat to democracy?

Scalia “Gay-rights groups have begun a scorched-earth policy against anybody who opposes their agenda. And the ultimate victim may be democracy itself.”

WHO SAID IT?

Justice Scalia

Close! In Scalia’s Obergefell dissent, he claimed the decision legalizing same-sex marriage was a threat to democracy: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

But it was the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, who made the similar claim four years earlier. Audio is available here.

Chuck Colson

Congrats! In 2011, the late evangelical Christian leader Chuck Colson, a hatchet man for President Nixon who found religion shortly before going to jail for obstruction of justice, claimed same-sex marriage could ruin our democracy.

It would be easy to confuse the statement with Scalia’s. In his Obergefell dissent, the justice made a similar claim regarding the decision to legalize same-sex marriage: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.” Audio is available here.

 

Question 4: Is opposing the death penalty really about ego?

Scalia “Manifestly, these death penalty hysterics do not care about the victims of crime. But they don’t really care about the killers, either. Their only objective is to increase their self-esteem. This is why liberal arguments against the death penalty are always circular. It’s not about logic; it’s about their conception of themselves.”

WHO SAID IT?

Justice Scalia

Close! In Scalia’s Glossip concurrence, he similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”

But it was Ann Coulter who made the above statement in May, claiming that opposition to the death penalty was about self-esteem.

Ann Coulter

Congrats! In May, Ann Coulter claimed that opposition to the death penalty was about self-esteem.

But it would be easy to confuse the statement with something said by Scalia. In his Glossip concurrence, Scalia similarly criticized two justices on the Court who called for the abolition of the death penalty: “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”

 

Question 5: Extra Credit

Scalia “We look at the law. And the law includes the ’68 [Fair Housing] act and the ’88 amendments [to the act]. And I – I find it hard to read those two together in any other way than there is such a thing as disparate impact.”

WHO SAID IT?

Justice Scalia

Congrats! Yes, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates.

The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.

But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”

Justice Anthony Kennedy

Close! But actually, it was Scalia. During oral argument in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, a case where the Court ultimately upheld an important tool for enforcement of the Fair Housing Act known as “disparate impact,” Scalia appeared to echo the arguments of civil rights advocates. The Fair Housing Act was passed in 1968. Twenty years later, Congress amended the act. It added additional protected classes, rejected an amendment to prohibit disparate impact claims, and, most importantly, created three exceptions to disparate impact liability. These amendments would be meaningless, the plaintiffs argued, if the Fair Housing Act didn’t include disparate impact claims. And Scalia seemed to agree.

But when it came time to issue a decision, his vote did not reflect these views. He joined Justice Samuel Alito’s dissent which called the very argument he made before “deeply flawed.”



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