The subtlest feat of modern trolling ended in June 2015, when, as so often happens in America, it was taken all the way to the Supreme Court. For enthusiasts, one gratifying form of trolling involves the simple repetition of a deliberate misunderstanding. Think of it as a reverse con, where the mark is all too aware of what’s going on as the pranksters feign a Who, me? naïveté. In this case, the crew of rogues was the federal judiciary, and the livid sucker was the late Supreme Court Justice Antonin Scalia.
The prank was subtle enough that only law professors and beat reporters really had the pleasure. Like any arcane joke, it required a good bit of in-group background to understand. The setup, however, was vaguely familiar to most Americans: the recent but shifting rulings that led to an embrace of same-sex marriage in 2015 as the newest manifestation of American liberty. The key signpost on that road dates back to 2003, when the court held in Lawrence v. Texas that criminalizing homosexual sex was wrong.
Scalia dissented—something he did often, though “dissent” is too polite a term. More accurately, he vented, charging his fellow justices with opening the gates for “incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” He fumed that the court had “signed on to the so-called homosexual agenda”—elevating two hackneyed words rarely heard outside televangelical preachers and election-year robocalls. That agenda, Scalia wrote, intended to eliminate “the moral opprobrium that has traditionally attached to homosexual conduct.” Scalia was literally enraged that we couldn’t just hate on the gays anymore.
Ten years after that decision, the justices held that a federal law making same-sex marriage illegal was unconstitutional. The majority opinion rejected Scalia’s “moral opprobrium” as a legal standard, holding that it only served “to disparage and to injure” gay people.
Scalia trashed the opinion as legal “argle-bargle,” relying upon Archie Comics slang, a stylistic tic to which he increasingly resorted. In a decision about gay sex, he fancied himself quite the wag when he accused the other justices of possessing “real cheek,” and warned that it was only a matter of time before this perverted thinking seeped into the state courts, after which the entire country would be awash in wedding-cake-ordering sodomites.
He then wrote a sarcastic sentence that, in all likelihood, will frame his enduring legal reputation. He made a prediction: If the highest federal court was now telling the states it was no longer constitutional to discriminate against gays state-by-state, then it was only a matter of time before courts would agree they could legally marry. “How easy it is,” he wrote, “to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
Over the next three years, lower court judges did exactly that. They applied Scalia’s sneering prose as their straightforward reasoning, and one circuit after another, like dominoes, approved same-sex marriage.
News outlets would report, as they did in 2014, for instance, that Judge John E. Jones III, a district judge in Pennsylvania, struck down the state’s ban on same-sex marriage. What often got missed in these regular dispatches is that Jones described his ruling by writing, “As Justice Scalia cogently remarked in his dissent…” That adverb “cogently” is a rhetorical shiv in Scalia’s ribs. Jones could easily have restricted himself to quotations from Anthony Kennedy’s majority opinion. But he didn’t. Way in the weeds of his thinking, Jones was taunting Scalia, knowing that the justice would read the opinion and stew over a reading of his sentences that just took up the plain meaning of his words, voiding the apparent irony of his voice.
If Jones had been alone, maybe no one would have noticed, but these shrewd asides kept coming, all meant to punk Scalia. Another judge, Robert L. Hinkle in Florida, let his reasoning flow by citing the 2003 decision and how “Justice Scalia made precisely the point set out above.” Some judges could be catty about it. Arenda Wright Allen of Virginia noted that her reasoning was “described eloquently” by Antonin Scalia. Utah’s Robert Shelby was thrilled that he “agrees with Justice Scalia’s interpretation,” and Timothy Black of Ohio was amazed that “it is just as Scalia predicted.”
These acts of high-court ridicule were all the more crippling because they came from everywhere. These were not liberal appointees needling a conservative justice. Almost half the judges trolling Scalia were Republican appointees.
Some of this nose-tweaking was obscure enough that one had to be an absolute gumshoe to catch it. Three years ago, Mark Joseph Stern at Slate spotted a brilliant line from Kentucky Judge John Heyburn. Part of Scalia’s rant in one of his anti-gay-marriage dissents featured him pretending to be a lower court judge affirming same-sex marriage, but obviously writing it with intentional contempt. Heyburn takes the specifics of the case he’s deciding and then copies out much of Scalia’s own writing. Heyburn creates a kind of pro-marriage MadLibs from Scalia’s spoof, and thus, phrase by phrase, transubstantiates Scalia’s sarcasm into earnest Kentucky law.
Scalia died in his sleep in February 2016, at an exclusive ranch in Texas on a retreat with other members of one of those secret hunting societies that appeal to new-money arrivistes—the International Order of St. Hubertus, whose members wear green robes embroidered with Latin mottos and pray for elevation from squire to knight, prior or grand master.
The postmortem lamentations of pundits began almost immediately. Pretty much the day after Scalia was found in his bed, America learned she’d lost one of its most brilliant thinkers and legal writers. But this reputation was mostly a media confection, an awkward fusion of Supreme Court gravitas with cable TV bluster. His writing was plagued by a habit for snark, and his most grandiose theory is already being shoveled into footnotes few will ever read. Scalia loved to lecture his fellow justices that words only meant what they meant when they were written down. So it must have been in a grim silence that he read the lines of Heyburn or Shelby and the others—to hear his words reproduced plainly and, as a result, magically convey the very opposite of what he meant. Scalia’s true legacy won’t have much to do with legal reasoning as much as the way he brought a rhetorical vulgarity to court.
Scalia opened himself up to the taunting he received largely because of his nature and character. It was no secret that he was an ambitious justice, but the sheer architectonic scale of his ambition, combined with his bitter reaction to getting passed over for the top seat on the court, made Scalia categorically different from his peers.
I got my first insight into these differences more than thirty years ago, when I was dating a law student who became a clerk to Ruth Bader Ginsburg on the DC Circuit Court of Appeals and then, the following year, a clerk to Sandra Day O’Connor on the Supreme Court. At the time, I was a writer for the public TV producer Fred Friendly, who was then directing a series of hour-long roundtable discussions on the Constitution that involved walking real players (judges, cops, reporters, defense attorneys) through a storyline of real-world dilemmas which I and a few other people (including my then-girlfriend) would research and write.
So I spent a good deal of those two years on the Amtrak, devoting weekends and many work days in DC, researching cool legal ideas and being in love. During these days, Fred was looking for an articulate conservative judge to balance out a panel regular, the moderately liberal Judge Patricia Wald. Ginsburg happily suggested that Fred meet her opera buddy, Nino—who, like Ginsburg, was then a respected appeals court judge. To say that Fred swooned over Scalia, and vice versa, is an understatement. The judge flew up to New York to sit on a practice panel—something we didn’t expect—and blew everyone away with his great lines, humor, and smart readings of the law. Fred couldn’t get enough, and it’s safe to say that Scalia’s constant appearances on public television made him the most visible conservative judge in America in those three years before President Reagan appointed him to the Supreme Court, in 1986.
During this time, I often just hung out at the Supreme Court. Oral arguments were easy to get into in those days—you just wandered through the door. It was the greatest free show in DC. Also, there was the mess hall downstairs, where you could eat lunch, occasionally catching a sight of a justice huddling with clerks, or, say, Justice Harry Blackmun sitting alone.
Blackmun is remembered, of course, as the legendary justice who penned the Roe v. Wade decision, but inside the culture of the high court, Blackmun was seen as being not all that clever—existing somewhere in the smarts hierarchy above the intellectual runt of the nine, (no one argued this one) Chief Justice Warren Burger.
And that was the revelation I picked up in those years—that the court had its own pecking order. I can’t say that anyone ever overtly discussed it, but the adjectives betrayed the general sense of the hierarchy. We all knew what we knew and had ways to let others know what we knew. A Blackmun decision might be declared “pretty good” while an opinion by William Rehnquist was said to be “cunning” or “brilliant.” Any mention of Warren Burger got a big laugh. The chief justice then was generally regarded as a Supreme Court casting agent’s dream—the white mane, the basso profundo, the granite face—but otherwise was thought of pitiably. It was his lack of self-awareness that cocooned him from the opinion, whispered discreetly by us court groupies, that he probably should never have been elevated to the court, a niche currently occupied by Clarence Thomas.
In this regard, the court is not unlike high school. Put any nine people in a room, all of whom are, by general measure, very ambitious, and a pecking order will naturally take shape. It’s impossible to avoid, really. One way, back then, that helped us identify the two top justices happened every week. Very conservative William Rehnquist and very liberal William Brennan would not so secretly meet out of earshot of the other seven. If Rehnquist and Brennan didn’t regard their weekly tête-à-tête as the court’s innermost circle deciding the contours of coming issues, then everybody else did. But for those in the outer shell known as the clerk orbit (and the outer-outer shell of the clerks’ boyfriend/girlfriend orbit), it was widely understood that Rehnquist and Brennan fundamentally thought that they were the two smartest people on the court, and those in close orbit agreed.
Maybe high school isn’t the right analogy, because new justices, once they are elevated to the court, instantly realize that they have risen into Rushmore territory. They are no longer mere lawyers—or mere judges, for that matter. Books will be written about them. In some cases, like Rehnquist or Brennan, lots of books. All justices know that they’ve become a capitalized word, History.
So it didn’t matter, really, what lawyers muttered under their breath about Blackmun. At the end of the day, he was one of the nine votes, and often a crucial one, which resulted in a pile of his words having incredible power over the lives of Americans. And that is true of every justice. What’s more, those at the higher end of the pecking order know that they are destined for more than books, more than lots of books. Collections of legal doctrines and entire bodies of interpretation will be known by turning their last name into an adjective. Law schools and great legal institutions will chisel their names on granite lintels (William Brennan Center for Justice, Cardozo Law School). Just saying their names will be a kind of shorthand—John Marshall, Oliver Wendell Holmes, Felix Frankfurter.
Scalia aspired to be one of these justices. In that spirit, he adopted and trumpeted the doctrine of originalism, the belief that the words of the Constitution meant what the founding generation meant when they wrote them and nothing more. And that was true of any law, whenever it was written. “Unless you give [the laws] the meaning of those who enacted them, you destroy democracy,” Scalia said.
Scalia believed that while historical or legislative context might be interesting, nothing trumped a word’s plain meaning back when that word was written. So, did the due process clause of the Fourteenth Amendment apply to anyone besides freed slaves? Not really. Scalia despised the fuzzy notion of “evolving” law or people who talked of the Constitution as a “living” document. Scalia once noted that the Constitution was, and he meant this approvingly: “dead, dead, dead.” He loathed the idea that words might be nested in a context that amplified understanding. As far as he was concerned, words were iron nails of meaning that got hammered into simple sentences. Nothing more.
So when all those judges drained the sarcastic context from his furious gay-bashing jibber-jabber and deployed the remaining originalist meaning of his own words to overturn of Sca-lia’s legal view, those judges essentially pinned to Scalia’s cheeky backside the most nuanced kick me sign in the history of schoolyard bullying. So, I take it back; it is high school.
Scalia’s discipline of thought sounds quite philosophical—like some kind of school of linguistics that declares there should be clear objective meanings for each and every word. Such a feat has long been the holy grail of linguists. The artificial language of Ithkuil is one attempt, confected after thirty years of labor by a man named John Quijada. His idiom relies upon fifty-eight basic sounds to generate “an idealized language” with “the highest possible degree of…accuracy in cognitive expression.” Unfortunately, the writer Roc Morin noted, “It is so complex that even its creator often requires 10 minutes or more to assemble a single word.”
Grappling with the intoxicating dream that ideas and words were unchangingly connected is what drove Ludwig Wittgenstein mad. Any honest pursuit of that clean and spare ideal eventually drives any fair-minded thinker into concluding that context matters and word meanings do in fact drift and alter over time. In a 1918 decision, Oliver Wendell Holmes summed up the problem with originalism (long before it even existed): “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”
Scalia’s theory relied on a patriotic faith that the founding fathers were better than the rest of us, that they were an inspired generation of thinkers whose appearance on Earth was the true beginning of American exceptionalism.
But his view of American history was romantic hindsight, marked by a belief that the founders expected their ideas to be eternally understood as they understood them. Frankly, they weren’t that stupid.
No one at the time of its writing saw the Constitution as a perfect document. Before the founding generation met in Philadelphia in 1787, there had already been, depending on how you count, three different Articles of Confederation, which were basically failed drafts of a Constitution. George Washington and his friends simply tore them up and said, Let’s try again.
Trivia experts know not to fall for the “name the first president” trap because the answer is John Hanson. Not only was there a president under one of the articles; in fact, there were as many as eight of them. But, being the start-over artists that Americans were, we decided to honor George Washington by simply setting aside the swath of history that ran from the beginning of the American Revolution (1776) to when we finally scribbled down a Constitution that seemed to work (1787).
The Constitution was a cut-and-paste job, relying on Madison’s and Pinckney’s crib sheets. The Bill of Rights came later as a series of patches, and the Ninth and Tenth Amendments, which say that there are other rights the future might find is the constitutional equivalent of a high school student putting down the pen in the middle of a blue-book exam and writing, TIME. The founders may have been a gathering of geniuses, but they were also a bunch of amateurs.
The Constitution is not Holy Writ but improvisation, setting down many, but not all, of a set of principles and procedures that invites every generation to think through these ideas in its own way—a form of patriotic sweat equity that has in fact worked, only after bouts of quasi-insane intensity, and sometimes blood.
The real provenance of Scalia’s originalism was Catholicism. His legal theory was a faith. Scalia was a very conservative Catholic who believed in the authority of a high priesthood deriving simple truth from God’s inerrant text. It makes sense, then, that as a high court justice he strained to reveal the plain meaning of what our nearly divine founding fathers wrote in their Constitution. In coming up with his new court doctrine, Scalia simply took the habit of mind he exercised on Sunday and started exerting it on Monday.
It’s hard to overestimate just how Catholic (and catholic) Scalia was in his understanding of both these great texts. For instance, when asked, not long before he died, about whether Satan was literally a presence in the world, Scalia replied that of course he was, and looking at the reporter’s face, he exploded: “You’re looking at me as though I’m weird. My God! Are you so out of touch with most of America, most of which believes in the Devil? I mean, Jesus Christ believed in the Devil! It’s in the Gospels!”
Conservatives have always been enamored with variations of a philosophical faith that insists there is an objective basis to reality. They dislike and distrust the idea of human interpretation. The year Scalia was appointed to the court, Michael Kammen published his book A Machine That Would Go of Itself. The author chose his title from a quote about a peculiar faith in the Constitution that saw it as a kind of self-running system that could somehow spare all of us the messy arguments and contradictions and partisanship that comes with interpretation. James Russell Lowell once said, “After our Constitution got fairly into working order it really seemed as if we had invented a machine that would go of itself, and this begot a faith in our luck which even the Civil War itself but momentarily disturbed.”
For Scalia, the Constitution was such a machine, and while think tanks fluffed Scalia’s views into epithets from a brilliant thinker and literary stylist, those aligned along inner orbits of the court disagreed. For some, his views were considered first-year law student simplicity. Chief among his detractors was Scalia’s lifelong nemesis, appellate judge Richard Posner.
Half a century ago, a judge named Learned Hand was called the Tenth Justice, an acknowledgment that he should have been on the court for his intelligence, supple thinking, and lovely writing, but the politics of the moment didn’t work out.
So it was particularly galling when our contemporary Tenth Justice became one of the appellate judges who tormented Scalia on same-sex marriage. Posner held that same-sex marriage should be legal because Scalia “wrote that ‘principle and logic’ would require the Court…to hold that there is a constitutional right to same-sex marriage.” So he joined in on the linguistic games, but also couldn’t help but write that the main argument presented by the pro-Scalia side “is so full of holes that it cannot be taken seriously.”
Posner’s elegant critiques of Scalia’s intellectual failings have made it easier to see Scalia for the shabby thinker he increasingly became. Their rivalry stands as one in which Posner has been the Mozart to Scalia’s Salieri, the Hamilton to Scalia’s Burr. Posner delights in the quicksilver quality of words, and he notes that legal fussbudgets—like originalists such as Scalia—compensate for the vagaries of meaning with an obsession over footnotes and proper punctuation. Posner calls it “citation-format anxiety.”
“The anxiety is that law really is not a rigorous field,” Posner writes in his book Divergent Paths: The Academy and the Judiciary, “but a field dominated by hunch and priors and rough balancing of competing considerations given only subjective weights, and by often inaccurate facts and lying or muddled witnesses and sly lawyers and confused or disingenuous judges. These embarrassing realities induce a call for rigor, and since rigor cannot be achieved in law the call is answered by faux rigor, illustrated by obsession with citation format.”
When Scalia decided to write his own Posner-like tome, Reading Law: The Interpretation of Legal Texts, he chose as his coauthor Bryan Garner, a punctilious law professor most known for an obsession with footnotes and punctuation, and author of such books as The Redbook: A Manual on Legal Style and A Dictionary of Modern Legal Usage.
Posner’s critique of Scalia and Garner’s Reading Law went through several brutal public bouts in the New Republic. Posner went after the pair of authors for some silly mistakes, but mostly he trashed Scalianism, that sticking to a strict sense of word meanings should guide any judge through the thickets of legal decision-making and opinion-writing.
“Does an ordinance that says that ‘no person may bring a vehicle into the park’ apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes,” Posner writes. “After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so.”
In another discussion involving a restaurant, Posner notes that Scalia and his coauthor approve of a decision that argued “that the word ‘sandwiches’ in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines ‘sandwich’ as ‘two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.’ ”
Then Posner puts on his best sophist hat and has some fun: “A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich).” Then he goes full Wittgenstein, deep-diving into the linguistic dream of sandwichness. “The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.” Finally, Posner drops the mic: “Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.”
The most tortured originalist opinion ever written by Scalia is the majority opinion in a case called DC v. Heller, in which he overturned two centuries of legal precedent holding that the government could regulate guns.
Nothing says, in the originalist sense, that a government can regulate guns quite like writing the word “well-regulated” in the participial phrase that dominates the Second Amendment, which reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
But Scalia’s linguistic odyssey through numerous dictionaries contorts semantics to arrive at the desired meaning. First he dispatches the introductory phrase as merely prefatory, before moving on to the grueling lexicographic work of wrangling the phrase “bear arms,” which historically refers to soldiers in a military campaign. We “bear arms” against a common enemy, in other words. Scalia held that “bear” meant “carry,” so that “bear arms” literally applies to any weapon a citizen could pick up with his hands.
I am not making up this childlike argument. This was the originalist solution that allowed Scalia to overturn 200 years of local, state, and federal regulation of guns. Scalia wasn’t merely savaged for this tortured opinion, critics laughed right in his originalist face. “One does not bear arms against a rabbit,” Garry Wills wrote.
Over time, I came to think of the Posner–Scalia relationship as something like Sherlock Holmes and John Watson. They both even looked the part. Posner—gaunt, hatchet-faced, prim, an egghead fascinated by the world around him; Scalia—pudgy, dough-faced, shabby, a chatty-cathy puzzled by the world around him. The one-sided victories seemed to drive Scalia mad.
“You can get away with it in the New Republic,” Scalia fumed in a later interview, “but not to a legal audience.” Scalia was pulling rank, trying to wave away some mere judge who was critiquing his betters from the moshpit of popular journalism. Still, it was obvious from the interview that Posner’s ideas burned. “We are originalists,” he wailed, “we are not nuts.”
My own sense is that Scalia’s advanced nuttiness didn’t really crystalize until 2005, after he failed to get a promotion many thought he deserved. Years before, Ronald Reagan had elevated a sitting justice, William Rehnquist, to become chief, and many expected President George W. Bush to follow suit and choose conservatism’s favorite sitting justice for the top job—a promotion that would permit Scalian Doctrine to dominate the earliest decades of the new millennial court. Instead, Bush named the much younger John Roberts. With this move, the dream of Brandeisian stature and the thousand-year reign of triumphant originalism began to crumble.
In the post-2005 era, one can argue that Scalia seemed intent on wrecking Roberts’s court by destroying its most precious commodity: respectability. His ex cathedra remarks about the devil or his off-the-cuff observation that “sexual orgies eliminate social tensions and ought to be encouraged” made us all laugh, but increasingly it seemed that Archie Bunker now sat on the bench. Once, Scalia said that blacks shouldn’t be admitted to good schools because it’s better to have “them go to a less-advanced school, a less—a slower-track school where they do well.” In a speech at Georgetown University, he wondered why child abusers weren’t entitled to the same rights as gays since both are a “deserving minority” and “nobody loves them.” Scalia’s public opinions got meaner and nastier. He had argued that there was no constitutional violation in putting innocent people to death so long as they’d had a “full and fair trial.” He said that the Voting Rights Act was a “racial entitlement.”
These days, Supreme Court justices are confirmed amid star-spangled claims of judicial restraint and cautious application of the law and the conservative inching forward of stare decisis, but Scalia had found a doctrinal fig leaf behind which he could propose and carry out some of the most radical alterations to the Constitution of any age. According to law professor Geoffrey Stone, an analysis of Scalia’s votes from 2000 to 2013 found that he simply applied originalism when it got him to the position he wanted and did not apply it when it frustrated his “agenda” such that “every one of Justice Scalia’s votes in those cases tracked perfectly the conservative political position.” With each passing year, his devotion to his own bizarro logic grew more baroque until shifting into pure Monty Pythonism.
During an appearance on Fox News, he was asked about his new standard of “bearing arms” and guns, and Scalia actually said that it “obviously…doesn’t apply to cannons—but I suppose there are handheld rocket launchers that can bring down airplanes, that will have to be decided.”
People who love to quote Scalia often point to his dissents because that is often where he is said to be funny. That’s true, but only if slamming another justice’s writing as “argle-bargle” strikes you as risible. Fittingly, it is in his writing and his words that you can watch Scalia grow increasingly unhinged—often resorting to the lame insults of a presidential candidate sliding in the polls (Scalia once trashed his own court as “a committee of nine unelected lawyers.”)
Dissents are where certain legal thinkers have done some of their smartest work. But it requires a Posner caste of mind, charged with prescient thinking that can be laid out so that a future justice can pick up on it and, given changing circumstances, elevate a new kind of freedom or right to play out in society. In the notorious Plessy v. Ferguson case, in which the court affirmed in 1896 that the racism of separate black and white spheres of life was constitutional, the dissenter John Marshall Harlan wrote with Cassandra-like vision of a time when the court would see that “our Constitution is color-blind,” an idea and sentence that is now part of the vernacular of all Americans far outside the world of the Supreme Court.
Scalia instead chose to use his dissents the way a blogger might. In the final same-sex marriage opinion, he called Justice Kennedy’s opinion “mystical aphorisms of the fortune cookie.”
Chief Justice Charles Evans Hughes said a dissent was “an appeal to the brooding spirit of the law, to the intelligence of a future day.” It’s hard to do that when the most notable remark of, say, Scalia’s same-sex marriage opinion is that if he were Anthony Kennedy, “I would hide my head in a bag.”
Scalia’s campaign to sully Roberts’s court with his sloppy insults reached a new low in his final year. Since becoming law, the Affordable Care Act has turned into the Republicans’ Jean Valjean. They almost caught it in a legal snare in 2012, but Chief Justice John Roberts provided the fifth vote to save it. When a second case appeared in 2015, it sent shivers through the legal community. This second case was pure hackery, obvioiusly engineered by think tanks to let the justices take another swing.
The legal issue all turned on the word “state.” It’s a common word and it can mean state (like South Carolina) or the state (as in the federal government). In one sentence in the law, if the court ruled that the word was ambiguous, it would likely cause the entire law to collapse.
The plaintiffs, who’d been recruited by right-wing think tanks, proved that the whole thing was trumped up. One, named Rose Luck, listed her address as a “short-term-stay motel,” but when reporters showed up to speak with her, the clerks said that she no longer lived there. According to the Wall Street Journal, another plaintiff, Brenda Levy, “couldn’t recall how or when she became involved in the case,” and “had been told not to talk about it.” Tim Jost, a law professor at Washington & Lee University, put it plainly: “All of these plantiffs are people they picked off the street for this litigation.”
Beat reporters who cover the Supreme Court do not hide the fact that they love the Supreme Court. They honor its history and relish its traditions. So it was with raised eyebrows that most court reporters read Linda Greenhouse, the New York Times’s most distinguished Supreme Court writer, when she took to the Op-Ed page twice in total despair. “The court has permitted itself to be recruited into the front lines of a partisan war,” she said. “Not only the Affordable Care Act but the court itself is in peril as a result.” Normally, she wrote, court reporters “maintain the belief that the Supreme Court really is a court and not just a collection of politicians in robes.” But not this time: “I’ve found myself struggling against the impulse to say two words: I surrender.” Should a majority of the court side with the degraded thinking that Scalia was flirting with, she wrote, “you will have a great deal of explaining to do—not to me, but to history.”
Then the opinion came out. Once again Chief Justice Roberts managed to sink a Scalia initiative to soil the court’s reputation. In his majority opinion, Roberts lit out after Scalia himself. How? By quoting Scalia to justify his holding, of course. To add insult to injury, Roberts opined that words must be understood “in their context and with a view to their place in the overall statutory scheme.”
Naturally, Scalia lost it, lashing out that Obama’s law be renamed “Scotuscare.” His dissent is angry, vacant, and wandering, marked mainly by a sense of existential resignation. Perhaps he somehow knew the end was near. “Words no longer have meaning,” Scalia moaned, channeling his inner Hamlet. He trashed his colleagues’ ideas, not by countering with any of his own, but reaching for the kind of quasi-British snubs a screenwriter might put in the mouth of John Housman, or withering dismissals that must sound devastating if you’re wearing an embroidered green robe after surmounting the heights of priorship. “Pure applesauce,” Scalia wrote in one of his final major dissents for the Supreme Court, and “jiggery-pokery”—slang that, in context or out, really bears no meaning at all.