Has Supreme Court Justice Antonin Scalia completely lost his mind? Or is he better understood as the court's biggest sore loser, who just can't accept the fact that his colleagues roundly rejected his blustery constitutional and statutory interpretation when they ruled last month in favor of same-sex marriage in Obergefell v. Hodges and Obamacare in King v. Burwell.
Although I favor sore-loser explanation over the Mad-Hatter analysis there are good reasons to answer both questions in the affirmative. They are not, after all, mutually exclusive.
Those who think Nino, as his close friends and associates call him, has stepped through the jurisprudential looking glass can find ample support for their position in Scalia's splenetic dissents in Obergefell and King. They can also point to Scalia's bizarre behavior in court on the last day of the tribunal's recently ended term, when he reportedly veered "off-script" after Justice Samuel Alito read the main opinion in Glossip v. Gross, an unsuccessful death-penalty challenge to lethal injection, and delivered yet another tirade about Obergefell, which had been decided three days earlier.
As I explained before in this column, the issue in King concerned four words buried in section 1311 of the 381,000-word Affordable Care Act dealing with federal income tax subsidies for low-income purchasers of health insurance.
The right-wing activist attorneys who prosecuted the case argued that those four words--"established by the state"--meant that subsidies were available only to residents of states that had created their own marketplace insurance exchanges. Never mind, they insisted, that the remainder of the law required the federal government to provide an exchange if a state refused to establish one on its own.
Writing on June 25 for a 6-3 majority that included Justice Anthony Kennedy, who had voted to invalidate the Affordable Care Act's individual mandate in 2012, Chief Justice John Roberts followed the long-recognized rules judges use to construe ambiguous or inconsistent pieces of legislation, and read section 1311 in the context of the entire bill. Doing so, he arrived at the inevitable conclusion that tax subsidies must be made available nationwide.
Raging in dissent for himself, Alito and his silent wingman Justice Clarence Thomas, Scalia sounded indeed like a character drawn from the pages of "Alice in Wonderland." "Words no longer have meaning if an exchange that is not established by a state is 'established by the State," he scolded. The majority's holding to the contrary was little more than "interpretive jiggery-pokery," he admonished in one sentence, while terming it "pure applesauce" in another.
His dissent in Obergefell on gay marriage the following day, which was joined by Thomas, was even more unhinged. It began with the implausible assertion that the "substance of today's decree is not of immense personal importance to me." Coming from the pen of someone who in the past has compared homosexuality to murder, polygamy and animal abuse, and equated homosexuals with drug addicts and prostitutes, the claim not only seemed untrue, but also could be taken as a clinical sign of dissociation.
Demonstrating that the majority's opinion was in fact of the utmost personal importance, he branded the opinion as "a naked judicial claim to legislative--indeed, super-legislative--power." Lamenting the end of federalism and states' rights, he charged that "[a] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy."
And then, as if yielding to paranoid fantasy, he added: "Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie." Under the majority's tutelage, he obsessed in a pithy and spiteful footnote, "The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of a fortune cookie."
Unable to break with his obsessions about same-sex marriage, Scalia once more excoriated the Obergefell majority in open court during the final session of the term. In a free-wheeling rant delivered while he was supposed to be reading from his concurring opinion in Glossip, according to Slate.com columnist Dahlia Lithwick, he shouted, "Last Friday, five justices of this court took the issue" of same-sex marriage away from the voters.
Still, even if these are the ravings of a jurist in need of psychiatric attention, they signal something more profound for the future of American constitutional law. Simply put, Scalia's hyper-dramatic antics and fulminations signify the demise of the foundational legal principles he has championed throughout his extensive career: the theories of "originalism" and "textualism."
Once considered among the brightest stars of the conservative judicial counter-revolution that began in the 1980s with the creation of the Federalist Society, which he helped found, Scalia was nominated to the Supreme Court by President Reagan in 1986 and confirmed by the Senate on a unanimous vote of 98-0. He was 50 years old.
He will turn 80 next March.
Quizzed during his confirmation hearing by Joe Biden, then a Democratic senator from Delaware, and other members of the Judiciary Committee about his views on the Constitution, Scalia candidly explained that in analyzing the nation's founding document, he was "more inclined" to "look to the original meaning" of the words used by the Founding Fathers and the text they produced than to what others termed the "living Constitution"-- the idea that our rights and liberties should expand over time.
Scalia's brand of originalism crested with his landmark 2008 majority opinion in District of Columbia vs. Heller, in which he delved into the recesses of colonial history to hold that the framers of the Second Amendment intended to protect an individual right to bear arms rather than limit such rights to participation in state militias.
Following Heller, Scalia's scholarship was widely panned by respected historians such as Jack Rakove of Stanford University for its "faulty rethinking of the Second Amendment" and Saul Cornell of Fordham University for being "an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution's original meaning."
But it was not until Justice Kennedy's Obergefell opinion and its affirmation of the "living Constitution" theory, which Scalia loathes, that originalism suffered what some court-watchers see as "a nail in the coffin."
"The nature of injustice," Kennedy wrote in prose that will echo for decades and spill over into other areas of law, "is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning."
With his churlish response to Kennedy, the long arc of Scalia's tenure is now clearly bending toward travesty and, even more importantly, isolation. He's become the judicial equivalent of the proverbial old man screaming at the neighborhood kids to get off his lawn. He may be crazy or angry or a little of both. What matters most is that he's on his way to becoming irrelevant.
This post was first published on Truthdig.com