The Twilight of Antonin Scalia
And some of what they read was not in the majority opinion but in Scalia’s dissent. In fact, about half of the opinions explicitly cited Scalia’s words. A representative passage by Judge Timothy Black, a district judge in Ohio, wrote:
And now it is just as Justice Scalia predicted—the lower courts are applying the Supreme Court’s decision, as they must, and the question is presented whether a state can do what the federal government cannot—i.e.,discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no ….
No words Scalia would write in the October 2013 term would be remotely as important or influential as his 2012 “prediction.” That’s because disguised within the flamboyant rhetoric, he had made an important legal concession.