The Murk of Garrett Epps—Part 2

by Ed Whelan

See Part 1

In his essay titled “The Twilight of Antonin Scalia,” Garrett Epps contends in particular that in his dissent from the Court’s anti-DOMA ruling in U.S. v. Windsor, Justice Scalia “made an important legal concession” that somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.” (Emphasis added.) Scalia’s dissent in Windsor, Epps argues, “may be remembered as the most influential opinion of his career.”

There are some serious problems with Epps’s contention.

First, the “important legal concession” that Epps ascribes to Scalia is a proposition that Scalia never advances. According to Epps, Scalia said that “opposition to same-sex marriage was based on a ‘bare desire to harm.’” (Emphasis added.) Not so. What Scalia says is that the “real rationale” of the Windsor majority “is that DOMA is motivated by ‘“bare desire to harm.”’” Scalia, of course, doesn’t accept this wild mischaracterization of DOMA, much less extend it to “opposition to same-sex marriage”; he in fact spends pages documenting that the charge is “quite untrue.”

Second, no “concession” that Scalia might make could in any event alter the meaning of the majority opinion “as a matter of law.” A majority opinion means what it says. When that meaning is unclear or contestable, dissents might influence how others, including lower-court judges, read the majority opinion. As Epps observes, some dissents—like the Chief Justice’s in Windsor—“seek to limit the majority opinion, suggesting ways that lower courts can work around it.” Others, like Scalia’s, emphasize how bad the majority opinion is and thus might have the effect of suggesting expansive readings of the majority opinion. But in neither case can a dissent change the meaning of the majority opinion “as a matter of law.” (My point may strike many readers as a formalist quibble, but I’m responding to what I understand to be Epps’s formalist argument (“as a matter of law”).)

Epps might instead have argued merely that Scalia’s account of the Windsor majority’s “real rationale” has influenced how lower courts have read Windsor. Such a claim might have some merit. (Who can know?) But I doubt it. For starters, so many of the lower-court judges seems to have been so hellbent on striking down state marriage laws that their invocations of Scalia’s dissent come across as oh-so-clever window-dressing. Further, contrary to what Epps conveys, Scalia expressly states that he does “not mean to suggest disagreement” with the Chief’s position that the Windsor majority “is based on federalism,” and he says that lower courts “should take the Court at its word and distinguish away” Windsor.

Bench Memos

NRO’s home for judicial news and analysis.