Let’s turn to the same-sex marriage decision. I’ll have a separate post on the Court’s opinion later. Basically, my thought is that it reads like a lot of Justice Kennedy’s decisions, unfortunately.
With respect to the dissents, I want to make two points. The first is that the Chief Justice’s dissent is greatly weakened by its cliched use of Lochner. It’s as if he decided to repeat what he learned about the case in law school thirty-five years ago and thought that was a winner. It’s not. His story is riddled with historical inaccuracies (I’m sure David Bernstein will have more to say about that) and that charge no longer packs a wallop anyway.
Second, Justice Scalia’s dissent loses much of his credibility when he says at the outset that he personally does not care whether same-sex marriage is legal or not (as a policy matter). I don’t believe that, and I think that few who read the opinion do. Moreover, I find his speeches about the Justices usurping democracy to be getting rather tiresome. He reminds me of a coach that the players no longer listen to.