During the break between the petitioner and Solicitor General arguments on the first issue in Obergefell, a protester began screaming about how the Bible tells us that supporters of gay marriage will burn in hell, it’s an abomination, etc. After the guy was pulled out of the courtroom (apparently it took four officers), the Chief offered Donald Verilli an extra minute to compose himself; Verilli first accepted, then declined. As Verilli was moving to the podium to begin his argument, Justice Scalia said “It was rather refreshing, actually,” which was met with laughter from the gallery. (The whole thing is at pp. 27-28 of the transcript and at the very end of the petitioner’s argument on the audio).
Jeffrey Toobin argued that the real ugly part was not the outburst, but Scalia’s “shameful” joke. According to Toobin’s article, expanded upon in this Political Scene Podcast, what Scalia found “refreshing” was that someone inside the courtroom was finally making the real argument against same-sex marriage–moral condemnation of homosexuality and LGBTQ people–rather than the sterile and ultimately incoherent arguments about accidental procreation and “biological moms and dads.” Scalia was not joking; he was endorsing the viewpoint expressed by someone intentionally disrupting the proceedings and regretting that viewpoint’s absence from the actual proceedings. Toobin even suggested that the response was not real laughter, but shock at what Scalia had said.
Honestly, it never occurred to me that Scalia was suggesting that this was the “real” argument that he wished would be made in the case. I heard this as genuine laughter rather than shock at Scalia’s provocativeness (the advantage to being able to hear the argument, not just read it). It certainly is unusual for a justice to comment on courtroom protests, much less through a joke–and perhaps it is inappropriate. Perhaps Scalia meant that the protest broke the tension of the argument. If so, we can note that Scalia never finds the anti-Citizens United protests “refreshing,” suggesting he simply was reacting to the rare protester who is not on the opposite side of an issue as he is. And that, too, might be inappropriate.
But was Scalia really “endorsing” the views expressed? Is Toobin right about this? Or is this another example of simplistic and reductivist coverage of the Court? And am I being too forgiving of Scalia?
Posted by Howard Wasserman on May 3, 2015 at 10:18 AM
Comments
Read it in light of Scalia’s equally tasteless “flagpole sitters” crack during oral arguments in Windsor and you’ll have your answer.
Posted by: wimsy | May 10, 2015 6:43:07 PM
Toobin is so thoroughly dishonest that one can safely disgregard anything he says.
Posted by: Douglas Levene | May 5, 2015 4:04:48 PM
A legal Twitter person suggested Scalia was saying the break was refreshing. The idea it was a reference to an old ad campaign seems a stretch. I didn’t give it a negative connotation myself & I’m no big Scalia fan. Toobin’s view seems a stretch. I wouldn’t read much into it.
Posted by: Joe | May 4, 2015 12:51:51 PM
I thought he was saying that it was refreshing to have an outburst that wasn’t related to Citizen United (not because he agreed with this outburst and disagrees with the anti-Citizens United outbursts). Not that I have any special insight here . . .
Posted by: JD | May 4, 2015 11:11:56 AM
A few thoughts/questions on Justice Scalia’s “It was rather refreshing, actually.”:
1. What if the protesting miscreant raises at trial a 1st A speech clause defense, perhaps relying upon Justice Scalia’s joke and the case eventually ends up before the Court, making the claim that the clause is absolute even in a courtroom under the circumstances of the controversial case being argued? Was this protester’s outbreak close to “yelling fire” in a crowded courtroom? Did Scalia diffuse a possible panic reaction to the outbreak? Would Scalia recuse himself? (Keep in mind the very recent 5-4 decision of the Court involving FL ethics in campaign funding for the election of judges and the 1st A.)
2. As to what Scalia meant with his joke, should principles of originalism apply?
3. How was Scalia’s joke understood beyond Toobin, Howard and commenters here, i.e. a consensus, including especially by those in the courtroom?
4. Do the Court’s rules make any reference to joking during oral argument by a Justice?
5. At whose expense, if anyone, was the joke?
6. Or was this a Scalia “res gestae” reaction in the sense of performance art?
7. Is there a history of similar reactions by Justices to protesters during Court proceedings?
Alas, slicing and dicing a joke with over analysis overlooks the spontaneity that gave rise to it. Perhaps it would have been preferable had the joke not been told, but was their any real harm or foul? Maybe this will find its way into “The Originalist” proving that truth is stranger than fiction.
Posted by: Shag from Brookline | May 4, 2015 10:22:21 AM
Its ban, not “it’s ban.” For a completely different, aggressively favorable take on Scalia’s joke that argues Scalia was referring to an old Coke commercial, see Noah Feldman’s “Scalia’s Joke Was Just a Joke”:
http://www.bloombergview.com/articles/2015-04-29/scalia-s-joke-was-just-a-joke
Posted by: Asher | May 3, 2015 6:47:33 PM
I actually thought Toobin was right, more or less. Scalia’s Lawrence dissent argued that moral disapproval of same-sex sex was a sufficient reason to uphold it’s ban. I thought Scalia was joking that it was refreshing to hear someone honestly saying that they morally disapproved of same-sex marriage, instead of relying on the contrived rationales the states now advance. I don’t think there’s anything shameful about the view that a state’s moral disapproval of some kind of marriage can justify its banning it, but I do think that was the gist of the joke.
Posted by: Asher | May 3, 2015 2:36:28 PM
I didn’t hear this; only heard about it later. But I assumed his “refreshing” response was the same one I had: granted that one might not like courtroom disruption at all, but how “refreshing” to see someone from the “other side” disrupting the courtroom after a spate this year of disruptions from the left. At least at this level of abstraction, I find nothing especially outrageous about this, however much I might find offensive the substance of the disruption in question. That Toobin rushed to make a political point about it is hardly surprising: making a political point of things, being terribly offended, and so on is rather the order of the day in contemporary public debate, although I see no evidence that this contributes added value to anything.
Posted by: Paul Horwitz | May 3, 2015 1:26:15 PM
I tend to lean more toward your interpretation than Toobin’s. I also think it can be explained as simple performance reaction. Justice Scalia is known for making witty remarks, he knows it is expected of him and so he performs. I didn’t find it particularly funny but for a split second improvisation, it wasn’t bad.
Posted by: Kevin Hill | May 3, 2015 10:39:59 AM