Scalia Dissents: Some Favorites


With the passing of that great man I thought it appropriate in remembrance to quote from one or two of Scalia’s dissents. Readers may have their own favorites. The reader will note that Scalia’s crystal ball was fully functional.

There is, incidentally, a book of the same name as today’s post.

PGA Tour, Inc V Martin

The court (in 2001) decided in favor of expanding the power of central government under a desperate interpretation of the Americans with Disability ACT (ADA). A case in which Equality won and Reason lost. Scalia dissents.

Nowhere is it writ that PGA TOUR golf must be classic “essential” golf. Why cannot the PGA TOUR, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules–if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”) they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone—not even the Supreme Court of the United States—can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA TOUR) deems it to be essential.

If one assumes, however, that the PGA TOUR has some legal obligation to play classic, Platonic golf—and if one assumes the correctness of all the other wrong turns the Court has made to get to this point—then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several States,” U.S. Const., Art. I, [sec]8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a “fundamental” aspect of golf.

Lawrence v Texas

In which the court (in 2003) expanded the power of central government under a desperate interpretation that said, by implication, the Constitution supported buggery. A case in which Equality won and Reason lost. Scalia dissents:

Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation…State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers‘ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding…

What a massive disruption of the current social order, therefore, the overruling of Bowers entails…

If all the Court means by “acting in private” is “on private premises, with the doors closed and windows covered,” it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a “fundamental right,” even though all other consensual sodomy was criminalized.

I remind the read that bestiality is legal in several Enlightened countries. It is, of course, everywhere immoral, which proves the law is often an ass. And that truth, dear reader, is what justifies rebellion.

United States v Windsor

In which the court (in 2013) expanded the power of central government under a desperate interpretation that said the Defense of Marriage Act didn’t really mean it. A case in which Equality won and Reason lost. Scalia dissents:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case…

[This decision] 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 every-where “primary” in its role.

Obergefell et al. v Hodges

In which the court (in 2013) expanded the power of central government under a desperate interpretation of the Constitution where it was “discovered” &pi = 3. No; I’m only kidding. It was “discovered” the Constitution required adults to swear two (or more) men can “marry” each other. A case in which Equality won and Reason lost. Scalia dissents:

The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built…it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government.

In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement…

Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it.

Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit…

Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages…

…the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples…The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity…

The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans…

Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent.

The Story

Even though the sample is small, the moral of the story is obvious. An increasingly powerful central government awards itself powers it does not possess, resulting in a populace which is all but mandated to worship the State and, since this is a Democracy, itself. To which all we can say is God bless Antonin Scalia. Requiescat in pace.


  1. Talking and reason will no longer fix this. If it is to be fixed, either more action will need to be taken or nature will correct the false beliefs. The Supreme Court cannot overrule nature, be it global warming or human sexual deviancy.

    In all honesty, while Scalia was a voice of reason, the Court has been nothing of the sort for several years and shows no sign of caring. They are The Supremes and don’t any of you forget it.

  2. DAV

    It will be interesting to see who will be the replacement. Fortunately, this didn’t happen during the super majority. I think the replacement is likely to be a Middle Of the Road sort meaning future decisions will be toss-ups.

    Note the trend to increase central government. That won’t stop anytime in the near future.

  3. James

    The whole “Platonic golf” had me laughing so hard. What a mind to be without.

  4. Scalia pointed out the gravest and cardinal danger: Uprooting the concept of natural rights and planting in its place the false and de-humanizing notion that our rights emanate from the state (and left unsaid, that the state can take them from us as well).

  5. AureliusMoner

    It will be hard to find his like again.

    May the merits and prayers of the Blessed Virgin Mary, and the mighty assistance of the Archangel Michael, blot out whatever stains remained upon his soul, and conduct him to a place of light, rest and refreshment.

  6. Sylvain

    Is passing is the best thing for the USA in decades.

    Republican keep citing the lost of prestige of the US around the world. The worl is laughing at US conservative because conservative are retards.

  7. Briggs


    I’m letting that comment stand for reasons which may not be obvious to you but will be to others.

  8. Scotian

    John Ray says it best:

    “MESSAGE to Leftists: Even if you killed all conservatives tomorrow, you would just end up in another Soviet Union. Conservatives are all that stand between you and that dismal fate. And you may not even survive at all. Stalin killed off all the old Bolsheviks.”

    The sad part is that the left no longer feels the need to hide its hate in public. We live in dangerous times.

  9. There are days when I would love to hear rational, non-rude comments from the left and from Trump supporters. Not much luck on that yet. (Scalia was actually approved 98-0. I can’t see that happening again. Too much infighting and refusal to accept anything less than 100% leftist ideology.)

    Scotian: Yes, Stalin did indeed kill off all the old Bolsheviks. That lesson is simply ignored by most leftists or deemed to be “irrelevent”. Sad.

  10. Gary

    To misquote Carly Simon:
    You’re syl-vain.
    I bet you think this blog is about you.
    Don’t you, don’t you?

  11. Joy

    Sylvain your comments should come with a health warning.

  12. Ken

    On death penalty questions, Scalia consistently dissented from decisions limiting its use, as he did when the court ruled unconstitutional the execution of the “retarded.”

    “The principle question,” he [Scalia] said, “is who is to decide whether execution of the retarded is permissible or desirable? The justices of this court or the traditions and current practices of the American people? Today’s opinion says very clearly, the former.”

    For any R. Catholic’s that might attend this site, the above is a clear reminder that at least one fundamental view Scalia held was consistently inconsistent with that theological doctrine.

    On Roe v Wade (abortion rights) he was opposed to that S. Court determination because he recognized there was no Constitutional issue there — not because of any opposition to abortion. If that had gone his way he’d have been fine, legally, with this being a State’s right issue, with abortion being legal, or not, as determined by the governing State.

    Similarly, from a strictly legal perspective he was not so objective when it came to topics in which he held particular values.

    Arguably his most egregious opinion involved some simplistic thinking regarding how much control the military has over its own per the Feres precedent. In U.S. v Stanley (1987) Scalia wrote the opinion determining that military “good order and discipline” was paramount and that a troop who was subjected to LSD experiments without his knowledge or consent had no grounds for redress (a determination that provided for no exceptions to limitations in Sovereign Immunity when govt, military, power was clearly abused)!


    Fortunately, Congress remedied that separately. But its interesting to note that then Justice O’Connor noted that Scalia & a minimal majority were effectively authorizing under U.S. law behaviors for which some Nazis were prosecuted at Nuremberg.

    Which just goes to show, even someone that was consistent, and consistently expressed values you [generally] happen to agree with–was not without some flaws…and if left up to him would permit outcomes you probably couldn’t disagree with more (such as that abortion is or isn’t legal–that’s up to the individual States to decide).

    The point being, nobody nor their view, not even the Pope/s, should be blindly accepted…

  13. roger

    “An increasingly powerful central government awards itself powers it does not possess, resulting in a populace which is all but mandated to worship the State and, since this is a Democracy, itself.”
    All gods have their version of the first commandment.

  14. Sylvain

    Scotland the US capitalism bends so far to the right that it becomes close friends with communism.

    Working conditions in the USA are amongst the worst around the world. You can be fired without any reason or cause, you have no paid vacation, new parents have no parental leave or benefits, and the list goes on.

    Think about it, after taxes are paid the median salary in Canada is higher that that of the USA. And you still have to find Heath insurance, pay huge amount for college/university (Here: less than 5000$ for a full year with no interest loan).

    People living in communist country have nothing to envy from the US.

  15. Ever notice how progressives (at home and abroad) tend to describe the US as a really bad place to live, in spite of having never lived there? I often wonder why it is that the same progressives are in favor of illegal immigration and amnesty. Are they really so cruel as to want these poor souls left in the godless wasteland called America? That is just cruelty beyond cruel……

  16. Sylvain

    By the way, Marco Rubio closing statement could just have been written by a Muslim. What he was describing is Sharia law, which mainly comes from the Talmud and Deuteronomy.

  17. Sylvain


    I care very little about US immigration. The only reason people go there is the same reason young girl falls in the grip of pimp. They believe in a dream that does not exist. When they get there they face the deception.

  18. Sylvain


    At least select a layer. Like he could nominate himself.

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