The Murk of Garrett Epps—Part 1

by Ed Whelan

In an Atlantic essay titled “The Twilight of Antonin Scalia,” Garrett Epps displays that he has a severe case of Anti-Scalia Derangement Syndrome. Epps combines two bad arguments. His broader framing thesis is that Justice Scalia is no longer the “conservative wing’s alpha dog.” More specifically, he contends that Scalia “made an important legal concession” in his dissent in the Court’s anti-DOMA ruling in U.S. v. Windsor that, wonder of wonders, somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.”

I’ll address Epps’s framing thesis in this post and his more specific argument in the next.

There are two basic problems with Epps’s broader thesis. First, Epps obviously assumes that Scalia seeks to be the “conservative wing’s alpha dog.” I’m quite confident, by contrast, that Scalia would be delighted to have eight—or even four—originalist colleagues, irrespective whether they would overshadow him.

Second, Epps’s scanty evidence for Scalia’s supposed eclipse is that last term the “three most important conservative wins were written by Roberts and Alito” and that “Scalia’s most prominent appearance was in a bitter concurrence” (emphasis in original), in the recess-appointment case. But, given the configuration of the Court during his tenure, Scalia’s long-term influence has rarely come from majority opinions and instead has flowed most heavily from his concurrences and dissents. So there is nothing new or remarkable about the profile of Scalia’s set of opinions last term.

It’s too bad that Epps saved his (unintelligible) comparison of Scalia to Lucifer for the end, as he could have more clearly signaled the unwary reader how tendentious his piece is. I’ll limit myself in this post to two further examples:

Epps claims that when “[c]onfronted politely by a gay student,” Scalia “snapped” a response that Epps evidently mistakes to have been rude. Not so.

Epps claims that Scalia “has been unrelenting in opposing constitutional protections for gays and lesbians.” But contrary to what Epps asserts, Scalia, of course, has never taken the position that gays and lesbians don’t have the same general constitutional protections that all persons have. What has instead been at issue are questions like whether there is a fundamental constitutional right to homosexual sodomy and whether classifications based on sexual orientation are subjected to heightened scrutiny. Scalia’s originalism readily yields negative answers to those questions. To be clear: I don’t mean to slight the importance of such questions to gays and lesbians, but that’s no excuse for Epps’s sweeping overstatement.


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