Oh, yes, it can be fun to read Scalia's sarcastic and rude insults of a colleague's opposing opinion. When offended, I have to wonder whether it's because of his ideas or because...his language so harms the Court and the profession.
In today's same-sex marriage case, Scalia crossed a line I would have expected him to avoid.
In footnote 22, quoting Kennedy's opening sentence for the 5-4 majority, Scalia writes:
"If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: 'The Constitution promises liberty to allwithin its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,' I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning ofJohn Marshall and Joseph Story to the mystical aphorisms of the fortune cookie."
How after this can Kennedy work with him?
Scalia has himself "descended" from the manner of argument found in opinions of John Marshall and Joseph Story to the invective and mockery of the Internet. Lawyers have been chastised for less derisive comments in briefs. Yet here we have it from our Supreme Court.
Scalia sets a bad example that will harm civility in lower courts and at the bar.