Antonin Scalia's Top 5 Dissents of the Year

Scalia doesn't go down without a fight, and this term gave him plenty of ammunition.

1. Obergefell v. Hodges

Some people see that they're inevitably going to lose a big debate, and move on in resignation. Not Scalia. He's been complaining for years that the Court was on its way to legalizing same-sex marriage nationwide—and when it finally happened, he was downright furious.

Right off the bat, Scalia let it be known that he was writing his own dissent "to call attention to this Court's threat to American democracy."

He also wanted to call attention to what he believed was some very bad writing; Scalia lambasted the majority opinion for its "mummeries and straining-to-be-memorable passages." "I would hide my head in a bag" before joining a ruling that started off with the rhetoric Kennedy employed, Scalia said, adding later that the majority's "showy profundities are often profoundly incoherent."

Nobody loses an argument with quite as much pizazz as Justice Antonin Scalia.

Scalia rarely goes down without a fight, and the Supreme Court term that ends this week produced some of his most scathing, sarcastic, often bitingly funny opinions in years.

Scalia wrote 15 dissenting opinions during this term, from dry bankruptcy cases to the Court's landmark rulings on Obamacare and same-sex marriage—including several contenders for the Scalia Dissent Hall of Fame.

His strongest language and most cutting insults were usually reserved for his fellow Republican appointees, particularly in cases where Scalia thought the Court was overstepping its bounds (or letting the president overstep his). Justice Anthony Kennedy took a particular beating from Scalia's dissents this year, followed by Chief Justice John Roberts.

Whether you think this is Scalia at his best or at his worst, here are the five most quintessentially Scalia dissents of the term:

1. Obergefell v. Hodges

Some people see that they're inevitably going to lose a big debate, and move on in resignation. Not Scalia. He's been complaining for years that the Court was on its way to legalizing same-sex marriage nationwide—and when it finally happened, he was downright furious.

Right off the bat, Scalia let it be known that he was writing his own dissent "to call attention to this Court's threat to American democracy."

He also wanted to call attention to what he believed was some very bad writing; Scalia lambasted the majority opinion for its "mummeries and straining-to-be-memorable passages." "I would hide my head in a bag" before joining a ruling that started off with the rhetoric Kennedy employed, Scalia said, adding later that the majority's "showy profundities are often profoundly incoherent."

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."

4. Williams-Yulee v. Florida Bar

Many legal experts were surprised when Roberts wrote the majority opinion upholding a campaign-finance policy—and so was Scalia, who said in a dissenting opinion that the Court "flattens one settled First Amendment principle after another."

The Florida Bar Association imposes the campaign-finance policy in question; it prohibits judicial candidates from personally soliciting campaign contributions. Roberts is no fan of limits on campaign fundraising, but he ruled that the Florida policy was narrow enough to properly serve the goal of preserving both the fact and appearance of judicial independence. Although, the way Roberts described that goal seemed, to Scalia, like "the first sign on mischief."

The signs continued. Scalia accused the Court of "twistifications" that distorted First Amendment principles, "fumbling around for a fig-leaf" to justify its decision, and of misapplying the relevant legal test: "This is not strict scrutiny; it is sleight of hand," Scalia wrote.

And he wasn't buying Roberts's purported minimalism, either.

"The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived," he said.

Still, Scalia's dissent in Williams-Yulee wasn't as tough as it could have been. He closed out his opinion by saying, "I respectfully dissent." While that's the standard formulation for dissents, Scalia often drops the "respectfully" in highly charged cases.

5. Comptroller of the Treasury of Maryland v. Wynne

Sometimes, dissenting justices don't have a problem with the majority's opinion so much as they have a problem with the entire legal framework in which a case exists. Wynne was one of those cases. It dealt with the "negative Commerce clause," also known as the "dormant Commerce clause"—an area of law, Scalia argued, that shouldn't necessarily exist.

"The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause," he wrote.

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."

4. Williams-Yulee v. Florida Bar

Many legal experts were surprised when Roberts wrote the majority opinion upholding a campaign-finance policy—and so was Scalia, who said in a dissenting opinion that the Court "flattens one settled First Amendment principle after another."

The Florida Bar Association imposes the campaign-finance policy in question; it prohibits judicial candidates from personally soliciting campaign contributions. Roberts is no fan of limits on campaign fundraising, but he ruled that the Florida policy was narrow enough to properly serve the goal of preserving both the fact and appearance of judicial independence. Although, the way Roberts described that goal seemed, to Scalia, like "the first sign on mischief."

The signs continued. Scalia accused the Court of "twistifications" that distorted First Amendment principles, "fumbling around for a fig-leaf" to justify its decision, and of misapplying the relevant legal test: "This is not strict scrutiny; it is sleight of hand," Scalia wrote.

And he wasn't buying Roberts's purported minimalism, either.

"The Court tries to strike a pose of neutrality between appointment and election of judges, but no one should be deceived," he said.

Still, Scalia's dissent in Williams-Yulee wasn't as tough as it could have been. He closed out his opinion by saying, "I respectfully dissent." While that's the standard formulation for dissents, Scalia often drops the "respectfully" in highly charged cases.

5. Comptroller of the Treasury of Maryland v. Wynne

Sometimes, dissenting justices don't have a problem with the majority's opinion so much as they have a problem with the entire legal framework in which a case exists. Wynne was one of those cases. It dealt with the "negative Commerce clause," also known as the "dormant Commerce clause"—an area of law, Scalia argued, that shouldn't necessarily exist.

"The fundamental problem with our negative Commerce Clause cases is that the Constitution does not contain a negative Commerce Clause. It contains only a Commerce Clause," he wrote.

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."