CNN legal analyst Jeffrey Toobin blasted Antonin Scalia in a Tuesday column for The New Yorker, after the conservative Supreme Court justice cracked a joke during the oral arguments regarding the same-sex "marriage" cases. Toobin asserted that Justice Scalia's "rather refreshing" line in reaction to a pro-traditional marriage activist's disruption during the hearing was a "shocking, ugly moment," and that this "counter-outburst," as he put it, "further established his reputation as the Fox News Justice."
The liberal pundit led his item, "Justice Scalia's Shameful Joke," by recounting the protester's outburst and Scalia's reaction:
There was a shocking, ugly moment during the argument of Obergefell v. Hodges, the same-sex marriage case, in the Supreme Court on Tuesday. Right after Mary Bonauto, the lawyer challenging marriage bans in several states, completed her argument, a spectator rose from a back row and started screaming, "If you support gay marriage, you will burn in Hell!" As the man yelled, "It's an abomination!," guards carried him from the courtroom.
That wasn't the ugly part, though. In the quiet moment after the man was removed, as his shouts vanished into the hallway, Justice Antonin Scalia filled the silence with a quip. "It was rather refreshing, actually," he said.
Toobin continued that "it may have been just a joke from the senior Associate Justice on the Court, but what kind of joke—or was it really a joke at all? Scalia probably did think that the directness of the protester was bracing—'refreshing.'" However, he completely left out that Scalia got a laugh out of many of the people in the chamber. The commentator's liberal slant really came out, however, as he continued his speculation: "Indeed, there's every reason to believe that Scalia more or less shared the protester's view of the immorality of homosexuality, and that he regards the Court's toleration of gay people as one of the great disasters of his nearly three decades as a Justice."
The New Yorker writer didn't explain why he thought this way. Instead, he continued his barrage on Scalia, and made it clear that he loathed the conservative jurist:
Scalia's counter-outburst was a notable contrast to the respectful tone of the rest of the argument, including from his fellow-conservatives. It is one measure of the success of the gay-rights movement that all the other Justices felt compelled to phrase their questions in ways that honored the humanity of gay people....
In questioning Bonauto, Scalia further established his reputation as the Fox News Justice, who appears to use conservative talking points to prepare for oral arguments. Clearly drawing on a reservoir of outrage about the revision of an Indiana law that would have effectively allowed businesses to refuse to do business with same-sex couples, Scalia tried to pick an example that would motivate his ideological supporters, if not his colleagues. "Is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if, indeed, this Court holds that they have a constitutional right to marry?" he asked Bonauto. "Is it conceivable that that would be allowed?" Bonauto and Justice Elena Kagan shut down this silly idea with dispatch. Under the First Amendment's free-exercise-of-religion clause, it's long been clear that ministers can perform weddings (or refuse to perform them) for anyone they want.
Fortunately for the plaintiffs, Solicitor General Donald Verrilli, who was speaking for the Obama Administration, gave a superb argument in support of marriage equality in the mere fifteen minutes allotted to him....
Toobin concluded his piece with some preemptive celebration: "The most likely outcome still looks like a victory for the plantiffs and marriage equality in all fifty states. At a minimum, even before the decision is announced, the argument itself was an example of how much the country, and the Court, has changed on the subject of gay rights. On this issue at least, it’s not Scalia's Court anymore."
This isn't the first time that the liberal pundit has targeted Scalia. Back in October 2013, Toobin labeled the Supreme Court justice a "1950s social conservative," while touting notorious liberal Justice Ruth Bader Ginsburg a "woman who is very much in tune with the modern world."
It should be pointed out that while the CNN analyst thinks Scalia's crack was "shameful," he hasn't gone after Justices Ginsburg and Elena Kagan for conduct also related to the cases. Both justices have officiated at ceremonies for same-sex couples.
