What is the purpose of dissent in the Supreme Court? To cry foul, to persuade, to sensationalize, to fight? A dissenting opinion is not law and serves no official function; at times, it can seem like petty ankle-biting. What, then, is the point? The Court’s recent decision striking down state laws that banned gay marriage offers a fascinating case study. Obergefell v. Hodges, handed down on June 26 and written by Anthony Kennedy, holds that such laws violate the 14th Amendment’s due-process and equal-protection clauses. It was an extraordinary triumph for liberty and equality, but the four dissenting justices did not think so. To mark their strenuous opposition, each wrote a separate dissent; their efforts add up to twice the length of the majority opinion. The four conservatives did more than sign the intolerance ledger in the big book of judicial history, warm in the company of scowling brethren from years past. They also told us much about themselves, and even more about dissent as an institution.
Each of the dissents targets a different audience. Chief Justice John Roberts writes for posterity; his is the longest and much the best opinion of the four. A gifted writer, Roberts focuses on two problems: the question of judicial restraint, and the majority’s equal-protection analysis. He writes that the majority “seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question.” It’s a fair point, although it disregards the Supreme Court’s historic role in protecting minorities, who often lack political power. On equal protection, Roberts lands a better punch. He writes that Kennedy’s majority opinion analyzes state anti-marriage laws primarily under the due-process clause, and then appends a throwaway section saying, in effect, “Oh, and it violates equal protection too.” Roberts damningly points out that “the majority fails to provide even a single sentence explaining how the equal protection clause supplies independent weight for its position.”
Roberts’s opinion is unpersuasive. And yet it has the mark of a good dissent: After reading it, even a strong supporter of the majority’s position feels a stirring of doubt. Perhaps the Court should have allowed the democratic process, which favored gay rights, to continue. And Kennedy certainly could have done much more with the equal-protection argument. The opinion is incisive and closely reasoned; it finds the majority’s weak points and bedevils them with arguments that did not prevail but may endure. In this, it recalls one of the better dissents of Roberts’s mentor, former chief justice William Rehnquist, in Roe v. Wade. Roberts’s dissent stands out for its rhetorical sure-footedness. Very much unlike his colleague Antonin Scalia, Roberts knows how to measure out doses of vinegar. Chiding but not lampooning Kennedy’s penchant for lofty phrasing, Roberts writes, “There is, after all, no ‘Companionship and Understanding’ or ‘Nobility and Dignity’ Clause in the Constitution.” Amusingly, Roberts begins and ends his dissent with a show of his own personal open-mindedness on the issue of gay marriage. He is a persuasive enough writer that you might almost believe him—if you didn’t know how conservative he is.
With Scalia, there is no such mystery. His dissent begins with an apocalyptic boom: “I write separately to call attention to this Court’s threat to American democracy.” Scalia then affects a casual disinterest in gay rights—“The substance of today’s decree is not of immense personal importance to me”—but this is a transparent pose. His vile antigay rhetoric in previous dissents in Romer v. Evans (1996) and Lawrence v. Texas (2003) renders his disclaimer preposterous. If Roberts writes for posterity, Scalia writes for the headlines. His dissent overflows with outrageous insults to his colleague Kennedy, who filled his opinion with “straining-to-be-memorable passages” equivalent to “the mystical aphorisms of the fortune cookie.” Scalia even says he would rather hide his head in a bag than endorse Kennedy’s maudlin prose. These lines are colorful, but they obscure the purpose of Scalia’s dissent, which is never entirely clear. He focuses on judicial restraint, but Roberts already covered that. He is not persuading anyone except the Fox News crowd; only Clarence Thomas joined his opinion. And he certainly isn’t writing for future generations, who tend to disfavor strident holdouts on civil-rights progress. Scalia’s dissent gives the impression of a sore loser who likes the limelight.