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Justice Antonin Scalias opinions provide a wide array of material to analyse,

mull over and discuss. Currently the longest-serving justice on the U.S. Supreme Court,
he is a prolific writer of fiery opinions that speak to (and advocate for) originalist and
texualist views of the Constitution. There is currently not a justice with whom I disagree
more on an ideological level and yet not another that I find quite as entertaining and
engaging. Through a survey of his various dissents, it becomes clear that Scalias
contribution consists of strong pieces of writing that, at their best, boldly proclaim
nuanced critiques of the Courts majority or plurality opinions, and, at their worst, serve
as frustrating pieces of creative writing that have no place within contemporary
constitutional jurisprudence.
Romer v. Evans finds Justice Kennedy writing for the majority (as he would do in
Lawrence v. Texas and United States v. Windsor) in the Courts declaration of the
unconstitutionality of Colorados state constitution. There had been a provision that
came into the state constitution through a referendum initiative, and the question that
went up to the Supreme Court was whether this provision was unconstitutional under the
federal constitution. The purpose of this particular constitutional amendment was to
prohibit any laws or regulations which would serve to prevent and prohibit discrimination
against homosexuals or bisexuals.
It was plainly obviously that it was an anti-gay kind of initiative and, thus, an
anti-gay amendment to the constitution. This 1996 decision is of special note given the
recent resurgence of similar pieces of proposed legislation in several U.S. states. In this
breakthrough case, Kennedy uses the Courts 1973 decision in Department of Agriculture
v. Moreno as the doctrinal mechanism to conclude that the provision in question is

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unconstitutional.
Justice Scalia, in an opinion that is at times shocking, at other times frustrating,
and yet always entertaining, dissentsand not even respectfully. He takes the view
that all the amendment is doing is preventing special treatment, and questioned why a
democratic community is not allowed to put this into force. Moreover, Scalia suggests, if
the supposedly harmed group in question does not like the change, its enormous
influence in American media and politics is a possible remedy to reverse said
amendment (CFKS, 927). More offensively, he speaks to the noble purpose of
Amendment 2, stating that it sought to counter both the geographic concentration and
the disproportionate political power of homosexuals by (1) resolving the controversy at
the statewide level, and (2) making the election a single-issue contest for both sides
(CFKS, 926).
Perhaps most interesting, as much I fundamentally disagree with it in this
particular scenario, is his argument that you cannot equate moral disapproval with
bigotry. One of the things that is apparent through a tracking of Scalia through
substantive due process is that he takes the view that it is the prerogative of the
democratic community to embody its moral values and its moral imperatives in the law,
and that the Court should not be interfering with this. We see him advocating along
similarly strong and unwavering lines in Lawrence v. Texas, for example.
In that 2003 decision, which overturned Bowers v. Hardwick and struck down a
Texas sodomy law, we find Scalia again in dissent, complaining about the lack of
transparency on the part of the majority. He is very concerned about the implications of
the Courts decision in terms of morality legislation, stating that state laws against

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bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication,

bestiality, and obscenity aresustainable only in light of Bowers validation of laws
based on moral choices. Every single one of these laws is called into question by todays
decision (CFKS, 347).
Most troubling, however, is Scalias tendency to generally and broadly speak for
individuals who are not parties to the dispute, with no attention paid to evidence to
substantiate such claims. For example, in speaking to the goals of the so-called
homosexual agenda, he explains that many Americans do not want persons who openly
engage in homosexual conduct as partners in their business, as scoutmasters for their
children, as teachers in their children's schools, or as boarders in their home. They view
this as protecting themselves and their families from a lifestyle that they believe to be
immoral and destructive (CFKS, 350). Who are these people? How does Scalia know
their views so specifically, and, most importantly, why is this kind of speculation being
used to support the opinion of a Supreme Court justice?
Is there no minimum threshold of verified truth and integrity to hit for
unsubstantiated claims to meet before they are entrenched in these incredibly powerful
legal documents? I am reminded of politicians tendency to refer to the struggles and
stories of people they have met on the road during a campaign as a way to give weight to
their own personal views, policies and agendas. I wonder if Scalia is simply couching his
own distaste for a certain community through the thin veil of the opinions of unnamed
others.
Sometimes this illusory veil is not even present, and Scalias ideological
hypocrisy is out there for all to see. Take, for example, his varying and wildly

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inconsistent takes on the 1st amendment. In United States v. Stevens and Brown v.
Entertainment Merchants, he is a strong and firm advocate for 1st amendment rights, but
in United States v. Alvarez, we find him on the other side, joining Alitos dissent against
this kind of firmly entrenched protection. It is plainly obvious that this switch is due to
the nature of what he deems to be in danger (i.e. military honour), as opposed to it being
consistent in maintaining integrity with regards to his theory of the law and the
Constitution.
Although prone to unrestrained, inelegant and reckless outbursts, Scalia, behind
the histrionics, can often act as a truth-teller and investigator of sorts, uncovering
troubling gaps in reasoning within the majoritys opinion. In Lawrence, for example, we
see Kennedy evading the standard of review issue. Scalia, on this matter, points out that
nowhere does the Court's opinion declare that homosexual sodomy is a fundamental
right under the Due Process Clause; nor does it subject the Texas law to the standard of
review that would be appropriate (strict scrutiny) if homosexual sodomy were a
fundamental right (CFKS, 345).
We see this same kind of overt calling out on Scalias part in two post-9/11 cases
dealing with the availability of habeas corpus to detainees. In the 2004 decision of
Hamdi v. Rumsfeld, the plurality (led by Justice OConnor) recognized the governments
power (under the Authorization for Use of Military Force) to detain enemy combatants
for an initial period of time. In an arguably surprising twist (given the context and
subject matter of the case), Scalia comes down hard against the plurality opinion, stating
that if Hamdi is being imprisoned in violation of the Constitution (because without due
process of law), then his habeas petition should be granted; the Executive may then hand

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him over to the criminal authorities, whose detention for the purpose of prosecution will
be lawful, or else must release him (Hamdi, 24).
Strangely, although Scalia dissents vehemently in the case above, we find him
dissenting against the majority in the 2008 Boumediene v. Bush decision. I describe this
action as strange due to the fact that he vouched so strongly for the writ of habeas corpus
in Hamdi, but takes the majority to task here for holding a similar ideological position. In
the Kennedy majority decision, the Court declares the Military Commissions Act of 2006
unconstitutional, stating that petitioners may invoke the fundamental procedural
protections of habeas corpus. The laws and Constitution are designed to survive, and
remain in force, in extraordinary times. Liberty and security can be reconciled; and in
our system they are reconciled within the framework of the law (CFKS, 134).
Scalia, in response, calls out the majority, declaring that there is simply no
support for the Courts assertion that constitutional rights extend to aliens held outside U.
S. sovereign territory (Boumediene, 17). Moreover, he states that the rule that aliens
abroad are not constitutionally entitled to habeas corpus has not proved unworkable in
practice (Boumediene, 17). Within the admittedly entertaining histrionics of his dissent
is a troubling shift in values on Scalias partone that is hard to justify or explain, even
on a set of facts that are different than those found in Hamdi. What happened to his loud
tolling of the bell at the beginning of his dissent in that case? The very core of liberty
secured by our Anglo-Saxon system of separated powers, Scalia proclaimed, has been
freedom from indefinite imprisonment at the will of the Executive (Hamdi, 2). That
primal sentiment is nowhere to be found here, and this contradiction in fundamental
principles is cause for concern.

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If Scalias opinions (specifically, his fiery dissents) were pieces of creative

writing, simply designed for law students to grapple with and deconstruct, this whole
exercise would be much comforting than it currently is. However, that is not the case.
Rather, what we are dealing with here are various documents that carry much
significance and weight in terms of their direct application to life both on and off
American shores. Unfortunately, Scalias contribution to contemporary constitutional
jurisprudence seems to simply be that of being contrarian for the sake of being contrarian,
with no consistent legal footing or true ideological grounding.