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A rainbow flag which represents the LGBT community, and a U.S. flag are displayed together on the steps of the Sacramento LGBT Community Center in Sacramento, Calif., on Friday, June 26, 2015. Same-sex couples won the right to marry nationwide Friday as a divided Supreme Court handed a crowning victory to the gay rights movement, setting off a jubilant cascade of long-delayed weddings in states where they had been forbidden. (Randall Benton/AP)
A rainbow flag which represents the LGBT community, and a U.S. flag are displayed together on the steps of the Sacramento LGBT Community Center in Sacramento, Calif., on Friday, June 26, 2015. Same-sex couples won the right to marry nationwide Friday as a divided Supreme Court handed a crowning victory to the gay rights movement, setting off a jubilant cascade of long-delayed weddings in states where they had been forbidden. (Randall Benton/AP)

Dissenting Justice Scalia’s sarcastic rebuke raises eyebrows Add to ...

He labelled the United States Supreme Court “a threat to American democracy.” And then Justice Antonin Scalia, one of that court’s nine judges, got nasty.

Writing in dissent from the historic 5-4 ruling legalizing gay marriage throughout the United States, the 79-year-old judge said the opinion lacked “even a thin veneer of law.” He called the style “pretentious” and the content “egotistic.” He said he was astounded by the “hubris reflected in today’s judicial Putsch.” He called the judges unrepresentative – not a single evangelical Christian or “even a Protestant of any denomination.” And he mocked the majority for its description of intimacy in marriage, saying “One would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”

In its use of sarcasm and its insults, Justice Scalia’s dissent has no parallel in Canada. The dissent, and a separate one from Chief Justice John Roberts (“just who do we think we are?”), highlighted big differences in style and substance in American and Canadian legal traditions. The substance is one in which the democratic legitimacy of court rulings in the U.S. is constantly questioned, producing some passionate dissents.

Justice Scalia, appointed by Ronald Reagan in 1986, has promoted a view known as “originalism” – an especially literal reading of the Constitution. Since there was no right to same-sex marriage when the 14th amendment on equal protection of laws was ratified in 1868, “that resolves these cases,” he said.

The opposite view is known in the U.S. as “living constitutionalism,” in which law reflects changing times. (In Canadian terms, the Charter of Rights is known as a “living tree.”)

“When American judges disagree, they’re not just disagreeing about outcome, they’re disagreeing about legitimacy,” Burt Neuborne, the Norman Dorsen Professor in Civil Liberties at New York University, said in an interview.

Ironically, the Conservative government publicly announced the appointment Friday of a rare Canadian supporter of originalism, Justice Bradley Miller, to Ontario’s top court. Prof. Neuborne said Canada was never “afflicted by Scalia’s insistence on this literalism. If you don’t have that issue, you have reasonable people disagreeing on what the best reading of the text is, but none of them saying to the other, ‘Your approach is unjustifiable and a power grab.’”

By his stridency, Justice Scalia has lost influence over the years, Prof. Neuborne said, and “met his Waterloo” this week: “Today’s opinion is the greatest ‘living constitution’ opinion in the court’s history.”

Ian Holloway, Dean of the University of Calgary law school, said no Canadian judges have ever spoken to one another in their rulings the way Justice Scalia spoke to his colleagues.

“There’s a much greater tradition of what I’ll describe as old-world courtliness in the way in which judges in Canada speak to one another.” He said the more direct expression of differences has grown out of a greater tendency to partisanship in the appointment of judges in the United States.

Prof. Neuborne added that Canadians tend to be more restrained in how they speak to one another. “I have Canadian friends and they talk to one another differently. Canadians are remarkably civil people. In Manhattan, we get up in the morning and figure out how we can insult our neighbour.”

The Supreme Court of Canada, like the majority on the U.S. Supreme Court, stressed the importance of law changing with the times when it dealt with same-sex marriage in 2004: “The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.” The ruling was unanimous.

Compared to Justice Scalia’s harsh language, Justice Marshall Rothstein of the Supreme Court of Canada struck a mild note – though strong in Canadian terms – when he said in April that the court’s majority went too far in striking down the Conservative government’s mandatory minimum three-year sentence for illegal gun possession. “It is not for this Court to frustrate the policy goals of our elected representatives, based on questionable assumptions or loose conjecture.”

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