Justice Scalia’s Dissents Will Define His Legacy



Even in the age of hyper political correctness, Supreme Court Justice Antonin Scalia was never one to mince words. His colorful and often biting dissents will be one of the most enduring aspects of his legacy.

In his 34 years on the bench, Justice Scalia was the Court’s most outspoken Conservative. He was also an “Originalist,” the theory of constitutional interpretation that the text should be read using its original meaning at the time of enactment. These principles guided all of Justice Scalia’s decisions: and, when he didn’t agree with the majority he made his opinion known with flair.

“[If] it is profoundly wrong, [it] should be pointed out and pointed out forcefully. And I don’t mind people doing that to my opinions. A good hard-hitting dissent keeps you honest,” Scalia told NPR in 2008.

To mark his passing, and the absence of the bench it will create, below are some of Justice Scalia’s most noteworthy dissents:

Obergefell v. Hodges (2015): Justice Scalia criticized not only the majority’s ruling in the same-sex marriage case, but also the language that it used, writing: “The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

PGA Tour, Inc. v. Martin (2001): In a case regarding whether golfers should be allowed to use carts during PGA tour events, Justice Scalia demonstrated his biting sarcasm. He stated: “I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf.”

Wabaunsee County v. Umbehr (1996): Justice Scalia’s originalist views were on display in a First Amendment case involving independent contractors with government contracts. He wrote: “What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?”

Lee v. Weisman (1992): In the school prayer case, Scalia wrote a scathing dissent that criticized his fellow members of the Court. He wrote: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock hard science compared to psychology practiced by amateurs. A few citations of ‘[r]esearch in psychology’ that have no particular bearing upon the precise issue here cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court’s argument that state officials have ‘coerced’ students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.”

Morrison v. Olson (1988): In a case upholding the Independent Counsel Act, Justice Scalia displayed his humor and wit. As the lone dissenter, he wrote: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

Regardless of whether you agreed or disagreed with his opinions, Justice Scalia’s dissents assure that he will rank high among the most remembered and studied of the 117 people who have served on the United States Supreme Court.

To read even more great lines from Justice Scalia, read the author’s column on NJ Voices.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.


Justice Scalia’s Dissents Will Define His Legacy