Yet again, Antonin Scalia has given us reason not to trust the court he sits on. When he scolded the Supreme Court in his dissent to its ruling that sanctioned same-sex marriage, I could understand it. His side had lost, and what explanation for that could there be other than that the winners were unfit to judge? And so he wrote, “To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
Scalia also made me think when he accused Breyer of “creative arithmetic.” Breyer had argued that capital punishment is becoming ever more “unusual,” with 30 states having formally abolished it or not executed anyone in more than eight years, and with only three states—Texas, Florida, and Missouri—responsible for 28 of the 35 executions performed last year. Scalia didn’t bite. Yes, states have abandoned the death penalty, he allowed, but that’s “precisely because” (his italics) “suspect” judicial decisions have made it so expensive. So those states don’t count. They want to kill but can’t afford to. Scalia knows their hearts.
