the supremes

Antonin Scalia May Be Losing the Culture Wars, But He’s Winning the Zinger Wars

Have you heard the one about the hippies? Photo: Platon/Trunk Archive

In September of 2013, I interviewed Antonin Scalia for this magazine. He spoke memorably of many things — his belief in the Devil in particular — but the line that remains with me these 21 months later, the one I remember with precise grammatical accuracy and the wistful tone in which it was spoken, is this, in which he refers to himself in the third person: “Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it.”

The world is indeed spinning away from Scalia — not just on gay rights, which reached a new historic peak today, when the Supreme Court decided that gay men and women have a constitutional right to marry, but on the Affordable Care Act, too, which the Court upheld yesterday, deciding that an unfortunate and inconsistent clause could not, in the context of a massive bill with interlocking and interdependent clauses, ruin the bill’s clear intent.

One could say that the Court has shown itself to be very much of the world this week. Scalia, meanwhile, is already thinking about the next. “I have never been custodian of my legacy,” he told me, when explaining his tenacious opposition to a constitutional right to same-sex marriage. “When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.”

Often Supreme Court justices mellow with age. Scalia has shown no sign of doing so. Being on the right side of history obviously does not concern him — he’s willing to stand athwart it, as he says (one might even say it flatters his conception of himself) — and the more isolated he gets, the more extravagant his rhetoric becomes. The man is King Canute with a black robe and swan-feather quill, possibly the same one that signed the Constitution itself. His dissent calls the marriage-equality decision a “judicial Putsch,” and he warns of a constitutional crisis: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

Scalia may consider this moment a catastrophically political one. But it would be naïve to assume that Scalia’s views on marriage equality (or Obamacare, which he derisively referred to as SCOTUScare) are any less political. He likes to imagine himself as a solitary voice of reason, jealously guarding to the Constitution, unswayed by personal preference and the newfangled notions of the moment. But in truth, he does not approve of same-sex marriage, simple as that. “I still think it’s Catholic teaching that it’s wrong. Okay?” he told me in 2013. Had Scalia opposed Kennedy’s logic on constitutional grounds alone, he could have done so; instead, he goes a good deal further. Though he concedes states have a right to determine who can marry, he then adds that the states that chose to do so were taking a risk: “Those civil consequences — and the public approval that conferring the name of marriage evidences — can perhaps have adverse social effects.” (Adverse social effects on whom, he does not specify.) He then adds that same-sex marriage is less popular than meets the eye: “The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.” This is disingenuous, suggesting that popular opinion is against same-sex marriage. In fact, more Americans favor same-sex marriage than oppose it (57 percent, to be precise), and gay couples can get married in 36 states. While it’s true that many of these states were forced to do so by judicial decision, those opinions often came from lower-level courts where judges found the same elusive constitutional right to marry that the Supreme Court found today.

But most strikingly, Scalia describes the Supreme Court just as a conservative talk radio host might — which is not all that surprising, really, given that he also told me he gets much of his news from talk radio. “The Federal Judiciary,” he warns, “is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination.”

In other words: A twee, out-of-touch group of Ivy League elites are now calling the shots in the United States. Be afraid. (Though one does wonder whether “California does not count” will climb right up there with Nabokov’s “picnic, lightning” as one of the greatest parenthetical statements of all time.) 

Scalia’s opinions have always had the sting of industrial solvent, always been entertaining to read. But today, he’s outdone himself, layering on his despair in brackets within parentheses; he invokes every conservative bugaboo he can, including hippies. (“One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”)

At another point in history, Scalia’s words might have been downright terrifying. The fundamental bigotry in them would have seemed dangerous, and not uncommon. As Scalia himself wrote in Lawrence v. Texas, “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.” 

But even then, Scalia was writing in the minority. What we were hearing from him was in fact the beginning of the final act of a long opera, Wagner’s Wotan howling with regret about having to set humanity free. Already, times were changing, inexorably and irrevocably. There was no going back.

Today, Scalia’s words are only that, his rhetoric inversely proportionate to its influence. He has lost the culture wars, and he knows as much. The most he can do is concoct vinegar-infused dissents, hoping the next generation of law students, whom he feels is his true audience anyway, will eagerly ingest them.

In the meantime, he must continue his day-to-day life with Justice Kennedy — whose writing he attacked even more vigorously than his jurisprudence — and then with gay Supreme Court employees who’ll suddenly begin to marry around him, and then the oncoming sea change from the Republican party itself (58 percent of GOP millennials favor same-sex marriage, according to Pew), and then, finally, the great, spinning world.

*A version of this article appears in the June 29, 2015 issue of New York Magazine.

Scalia Is More Isolated, Ferocious Than Ever