To follow up on Adam's point below, my favorite example of Scalia's legal arguments contradicting his frequent self-congratulation for his allegedly neutral and rule-bound jurisprudence has to be his dissent in Romer v. Evans, which struck down a Colorado initiative that prevented state and local officials from including sexual orientation as a protected category under civil-rights laws and ordinances:
The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a “bare ... desire to harm” homosexuals, ante, at 13, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws...
...First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of “animus” or “animosity” toward homosexuality, as though that has been established as Unamerican. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible—murder, for example, or polygamy, or cruelty to animals—and could exhibit even “animus” toward such conduct.
One hardly knows where to begin in considering the offensive aspects of Scalia's non-reasoning here: linking anti-gay and lesbian policies to German anti-Catholic policies and meaning this as a defense of their constitutionality, comparing consensual sexual relations among adults to murder, focusing on the prohibition on "conduct" even though the amendment in question (as Kennedy pointed out at some length) didn't involve "conduct" at all. But I think it's safe to say that the homophobia that drips off almost every word in Scalia's dissent may have something to do with why he was unable to see an equal protection violation in Colorado's discriminatory amendment, while he's been able to find equal protections of violations (regardless of original intent) in cases where an expansive read of the 14th Amendment produces policy or electoral outcomes he finds desirable.
--Scott Lemieux
