Interns
with media organizations run on Friday in Washington with copies of the
Supreme Court decision that the U.S. Constitution gives same-sex
couples the right to marry. (Photo: Joshua Roberts/Reuters)
Justice
Anthony Kennedy almost always votes alongside his four conservative
colleagues on the Supreme Court. But when he doesn’t, it’s often in big,
transformative cases, like Friday’s gay marriage decision. His
defection clearly has made his conservative peers hopping mad.
Each of the four conservative justices in the minority wrote his own dissent, a sign that their disappointment and anger at the decision striking down gay marriage bans could not be combined into one response. Separately, their writings bordered on the caustic, sometimes even making personal attacks on Kennedy’s jurisprudence and writing style.
Kennedy, who is known for rhetorical flourishes and sweeping legal
writing, begins his opinion with a broad statement: “The Constitution
promises liberty to all within its reach, liberty that includes certain
specific rights that allow persons, within a lawful realm, to define and
express their identity.” He concludes that the 14th Amendment
guarantees the right to marriage to same-sex couples, and that denying
them marriage robs them of liberty entitled to them by law. And on his
way, Kennedy colorfully explains that marriage is an ennobling
institution that bestows dignity upon those who enter it. (“Marriage
responds to the universal fear that a lonely person might call out only
to find no one there,” Kennedy writes.)
The
opening seemed to enrage Justice Antonin Scalia, who went even further
than usual in his criticism of Kennedy’s signature flowery language. He
wrote in a footnote that he would “hide his head in a bag” if he ever
signed onto an opinion containing this first sentence, which he said
contained “the mystical aphorisms of a fortune cookie.”
Justices Kennedy (left) and Scalia. (Photos: U.S. Supreme Court via Wiki Commons)
Chief Justice John Roberts, who read much of his dissent aloud from the
bench, a sign of his deep displeasure, called the opinion’s reasoning
“unprincipled.” He even compared it to the infamous Dred Scott case from
the 19th century, when the Supreme Court held that no one of African
descent could be an American citizen.
Conservative judges also lambasted Kennedy for skipping some key legal
details in his opinion, such as what level of scrutiny the high court
used to examine gay couples’ claims.
Doug NeJaime, a professor of law at UCLA, says that conservative
justices have long criticized Kennedy’s opinions for this sort of
gloss-over when he writes with the liberals. “This is classic Justice
Kennedy,” he said. “It’s not the kind of mechanical, constitutional
analysis that some of the other justices might want.”
Complaints about Kennedy’s writing style pepper the dissents. Roberts
mocks its “shiny rhetorical gloss,” Scalia calls the opinion’s style
“pretentious” and full of “silly extravagances.” Justice Clarence Thomas
objects to the majority’s characterization of marriage as ennobling. “I
am unsure what that means,” he wrote. “People may choose to marry or
not to marry. The decision to do so does not make one person more
‘noble’ than another.”
Writter: