The Meaning of Antonin Scalia

The subtlest feat of modern trolling ended in June 2015, when, as so often happens in America, it was taken all the way to the Supreme Court. For enthusiasts, one gratifying form of trolling involves the simple repetition of a deliberate misunderstanding. Think of it as a reverse con, where the mark is all too aware of what's going on as the pranksters feign a Who, me? naïveté. In this case, the crew of rogues was the federal judiciary, and the livid sucker was the late Supreme Court Justice Antonin Scalia.

The prank was subtle enough that only law professors and beat reporters really had the pleasure. Like any arcane joke, it required a good bit of in-group background to understand. The setup, however, was vaguely familiar to most Americans: the recent but shifting rulings that led to an embrace of same-sex marriage in 2015 as the newest manifestation of American liberty. The key signpost on that road dates back to 2003, when the court held in Lawrence v. Texas that criminalizing homosexual sex was wrong.

Scalia dissented—something he did often, though "dissent" is too polite a term. More accurately, he vented, charging his fellow justices with opening the gates for "incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity." He fumed that the court had "signed on to the so-called homosexual agenda"—elevating two hackneyed words rarely heard outside televangelical preachers and election-year robocalls. That agenda, Scalia wrote, intended to eliminate "the moral opprobrium that has traditionally attached to homosexual conduct." Scalia was literally enraged that we couldn't just hate on the gays anymore.

Ten years after that decision, the justices held that a federal law making same-sex marriage illegal was unconstitutional. The majority opinion rejected Scalia's "moral opprobrium" as a legal standard, holding that it only served "to disparage and to injure" gay people.

Scalia trashed the opinion as legal "argle-bargle," relying upon Archie Comics slang, a stylistic tic to which he increasingly resorted. In a decision about gay sex, he fancied himself quite the wag when he accused the other justices of possessing "real cheek," and warned that it was only a matter of time before this perverted thinking seeped into the state courts, after which the entire country would be awash in wedding-cake-ordering sodomites.

He then wrote a sarcastic sentence that, in all likelihood, will frame his enduring legal reputation. He made a prediction: If the highest federal court was now telling the states it was no longer constitutional to discriminate against gays state-by-state, then it was only a matter of time before courts would agree they could legally marry. "How easy it is," he wrote, "to reach the same conclusion with regard to state laws denying same-sex couples marital status."

Over the next three years, lower court judges did exactly that. They applied Scalia's sneering prose as their straightforward reasoning, and one circuit after another, like dominoes, approved same-sex marriage.

News outlets would report, as they did in 2014, for instance, that Judge John E. Jones III,

a district judge in Pennsylvania, struck down the state's ban on same-sex marriage. What often got missed in these regular dispatches is that Jones described his ruling by writing, "As Justice Scalia cogently remarked in his dissent…" That adverb "cogently" is a rhetorical shiv in Scalia's ribs. Jones could easily have restricted himself to quotations from Anthony Kennedy's majority opinion. But he didn't. Way in the weeds of his thinking, Jones was taunting Scalia, knowing that the justice would read the opinion and stew over a reading of his sentences that just took up the plain meaning of his words, voiding the apparent irony of his voice.

If Jones had been alone, maybe no one would have noticed, but these shrewd asides kept coming, all meant to punk Scalia. Another judge, Robert L. Hinkle in Florida, let his reasoning flow by citing the 2003 decision and how "Justice Scalia made precisely the point set...