WASHINGTON – Justice Antonin Scalia is still furious about same-sex marriage.
On Monday morning, the last day of this Supreme Court term, there were no rainbow flags or same-sex marriage protesters left on the marble plaza before the the nation’s highest court. But inside the court room, Scalia wanted to talk about Friday’s 5-4 decision making same-sex marriage legal throughout the United States, despite the fact that there were three other opinions to issue. In an extraordinary reading from the bench in a death penalty case in which he was actually in the majority, Scalia managed to dissent on gay marriage for a second time.
“Last Friday, this court took away from the people the right to decide on same-sex marriage on the basis of their own policy preferences,” he said, taking a shot at Justices Ruth Bader Ginsburg and Stephen Breyer for suggesting in their written dissent to the case being announced that the death penalty is unconstitutional.
It was, in other words, a dissent to a dissent.
“Unlike opposite sex marriage” – Scalia apparently misspoke and meant same-sex marriage – “the death penalty is approved by the constitution,” the conservative justice said.
Scalia said he found it “wryly amusing” that Ginsburg and Breyer cited the average delay before an execution, 18 years, as one reason it was unconstitutional. “Maybe we should celebrate that two justices are willing to kill the death penalty outright instead of pecking it to death,” Scalia cracked. No one laughed.
He then lamented that the justices of the court have changed so much, so fast.
Normal protocol at the Supreme Court is for the justice who is in the majority to summarize his or her opinion from the bench. If a dissenting justice feels strongly about their protest, she or he may also read aloud, but this is a rare occurrence. In Glossip v. Gross, an unusual four justices read from the bench: Justice Samuel Alito with his majority opinion, Justice Sonia Sotomayor with a fairly furious dissent to the method of execution, which she likened to burning someone at the stake, and Justice Stephen Breyer explaining why he and Justice Ruth Bader Ginsburg think the time has come to declare the death penalty unconstitutional. That’s when Scalia jumped in with his take, connecting the death penalty case with Friday’s marriage opinion.
Oral dissents are considered extraordinary; Sotomayor, currently in her sixth term on the court, has only dissented from the bench once, in an affirmative action case last term. Although Scalia has dissented from the bench more often, the fact that he did so within a concurring opinion made the move all the more astonishing.
Writing for five justices, Alito said that if the death row inmates objected to the drug protocol that was scheduled to end their lives, they themselves had to identify an alternative.
Scalia’s written concurrence in the death penalty case is similarly agitated at the two losing justices with the temerity to question the death penalty. “A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good,” he wrote.
Interestingly, the two Obama appointees, Sotomayor and Justice Elena Kagan, dissented from the case itself but did not join Breyer and Ginsburg in their suggestion that the death penalty itself needs another look.
Breyer, writing on behalf of himself and Ginsburg, couched his opposition to the death penalty in his long tenure on the court. Justices often have to make emergency determinations on petitions from death row. “The studies bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations,” Breyer wrote.
“Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”