(Madeleine Morgenstern) Supreme Court Justice Antonin Scalia’s acerbic style was on full display in his dissent from the high court’s decision to strike down the provision of the federal Defense of Marriage Act denying benefits to married gay couples.
Scalia excoriated Justice Anthony Kennedy’s majority opinion in United States v. Windsor as “rootless and shifting” and held that the court had no standing to take the case. Here are 12 sharp-tongued highlights:
• The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?
• That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.
• There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire to place this Court at the center of the Nation’s life.