Peter Schorsch: Antonin Scalia takes turn to the bizarre

I am certain the public’s opinion is as divided on the subjects of gay marriage and Obamacare – and, in particular, this week’s SCOTUS rulings – as the court itself.  And although this is not a post about the meaning or effect of either ruling, I can’t help but wonder if dissenter-in-chief Antonin Scalia has lost his mind.

In reading his two recent dissents, Scalia’s words read more like bizarre (and more than a little bit whiny) manifestos than reasoned or articulate rationales for his position. You know, the kind of thing one might expect FROM THE HIGHEST COURT IN THE LAND!

Consider a few of these gems:

• We should start calling this law SCOTUScare.
• Words no longer have meaning.
• They (the majority) have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since.” … (Well, except about a dozen or so lower courts and now a majority of his colleagues and, not to be too technical or anything, but everyone who was alive at ratification was pretty much dead 80 years later when the 14th amendment was passed.)
•  … one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
• “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
• The Court’s next bit of interpretive jiggery-pokery…

Ask the nearest hippie? Fortune cookies? Jiggery-pokery?

And this is the man complaining of the degradation of the court while his opinions are one sentence fragment shy of being, “Well, then phooey on you, guys.”

Degradation indeed.

Finally, I can’t help notice one big giant humongous slice of irony in that the Honorable Justice Scalia – a proud constitutional originalist – hearkens back to the good old days of John Marshall. (You know, when it was perfectly legal to own other people.)

Why is that ironic?

The very idea that the court is now sitting in judgment of federal law and deciding whether it is too “pokery” or not – an idea specifically and intentionally left out of the actual U.S. Constitution – was kind of invented, in his own bit of jiggery-pokery by that same John Marshall. 

See Marbury v. Madison.