The Commerce Clause allows the federal government to regulate interstate commerce. The "negative Commerce Clause" refers to the idea that the federal government also can stop the states from passing measures that burden interstate commerce. But that idea "is a judicial fraud," Scalia wrote in his dissent from the Court's 5-4 decision, written by Justice Samuel Alito.
Scalia also dubbed it the "Synthetic Commerce Clause" and the "Imaginary Commerce Clause"—fitting, he said, because it produces only "imaginary benefits."
"The Court claims that the doctrine 'has deep roots,'" Scalia wrote. "So it does, like many weeds."
2. King v. Burwell
Scalia tapped into a deep well of anger and sarcasm as the Court's term came to a close, delivering two scorchers on back-to-back days. Just 24 hours before he tore into Kennedy's rhetoric, Scalia laid into Roberts for his (second) ruling upholding a key piece of the Affordable Care Act.
The headline zinger was obviously: "We should start calling this law SCOTUScare." But the decision is chock-full of similarly indignant criticisms. One part of Roberts's ruling was deemed "pure applesauce"; another, "interpretive jiggery-pokery."
Roberts ruled in King that Obamacare's insurance subsidies are available to residents of all 50 states, irrespective of whether their state or the federal government operates the state's insurance exchange.
"Words no longer have meaning" under Roberts's "quite absurd" interpretation, Scalia argued, criticizing the chief justice for writing "with no semblance of shame" and assembling a "defense of the indefensible."
3. Zivotofsky v. Kerry
Same-sex marriage was hardly the first time Scalia argued that a Kennedy decision was undermining the basic tenets of American democracy. A few weeks earlier, there was Zivotofsky, in which the Court ruled 6-3 that Congress can't make the State Department identify Jerusalem as a part of Israel on U.S. passports.
Kennedy, writing for the majority, said it is up to the president alone to decide when to recognize another country's sovereignty. And since the president has decided not to take a side in the debate over Israeli vs. Palestinian sovereignty over Jerusalem, identifying it on passports as part of Israel would disrupt that presidential power, he said.
Scalia saw that as a power grab for the executive branch that gave the president powers more fit for a king.
"In the end, the Court's decision does not rest on text or history or precedent "¦ It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy," Scalia wrote. "It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty."
Even Justice Clarence Thomas—normally a Scalia ally—suffered a rhetorical bruising in Zivotofsky. Thomas agreed with the results of Kennedy's decision but not its logic—and Thomas' reasoning, according to Scalia, "produces "¦ a presidency more reminiscent of George III than George Washington."