In Battle of 'Two Stooges,' Kennedy Beats Scalia

Andrew Koppelman: DOMA opinion is mess, but to so is the 'fun' dissent

By John Johnson,  Newser Staff

Posted Jun 27, 2013 12:46 PM CDT

(Newser) – Antonin Scalia's scathing dissent to Anthony Kennedy's DOMA decision has drawn lots of attention because of lines like the one dismissing it as "legalistic argle-bargle." The thing is, Scalia is correct—Kennedy's opinion is a mess, writes Andrew Koppelman at Salon. But so is Scalia's dissent, he adds. "Each justice whacks the other very effectively. Each of them is right about the other’s cluelessness." He likens reading the opinions to "watching the Two Stooges" or a "couple of crazy old uncles bickering."

Kennedy does fine in the part of his decision where he calls DOMA a "bare desire to harm a politically unpopular group.” He should have left it at that, but instead he got caught up in his favorite topic of federalism, which resulted in a confusing and irrelevant section on how DOMA was somehow besmirching states' rights. "I will bet that the liberals who made up Kennedy’s majority could see what a mess his opinion is, but were afraid to point that out to him for fear of offending him and losing his vote," writes Koppelman. Scalia "pounces," and correctly so. But when it comes time for him to defend DOMA, he flops. How could he not, given that it's a "stupid, nasty law," writes Koppelman. Think of the bickering uncles, then, as "comic relief." Click for the full column.

This artist rendering shows attorney Paul Clement addressing the court on DOMA.   (AP Photo/Dana Verkouteren)
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