Reactions to the Dissents
Just as I had sympathy with Scalia's dissent in Romer, I once again find little to disagree with in his dissent here. I still don't agree with his conclusions, but his objections all need to be understood and internalized.
His analysis of the stare decisis incongruitites between Lawrence and Casey are hard to hard argue with, but then I didn't think those were necessary for upholding Roe in Casey. Still, I think it essentially amounts to a pretty strong attack on Kennedy, and to a lesser extent Souter (since O'Connor doesn't want to overturn Bowers).
As some commenters noted and Scalia discusses, it is now unclear how laws against incest et al can be distinguished (though his inclusion of the laws against masturbation caused a raised eyebrow). That is a valid concern, and I'm sure it'll be litigated soon enough. (Volokh has more).
I do welcome and generally adhere to his attacks on O'Connor's concurrence.
In the end Scalia and I just differ on the proper role of government and the courts. Despite this philosophical difference, I think his legal analysis is impeccable and superior to his colleagues, and I feel regret that he and I don't share more commonality in our philosophies.
I think Scalia gets more than his share of attack from people who disagree with his methods and opinions. After a year of law school, and particularly a semester of Constitutional Law, I think Scalia is one of my favorite justices. I almost never agree with him, but I think he is almost always upfront and open with his reasoning. This is something I find pretty lacking in the moderates (particularly O'Connor). That certainly applies to his discussion of the 'homosexual agenda'. Nothing he said in that entire passage struck me as incorrect. There certainly is such a thing, as laid out quite well here. It just so happens that I agree with that agenda. But that doesn't mean I should pretend I don't, or pretend it doesn't exist.
Thomas' dissent is also appreciated, as it gives us a bit more insight into his personal feelings on the matter, something that is often hard to gather from his strict adherence to originalism.
UPDATE: Upon re-reading Scalia's "homosexual agenda" passage, I still agree with almost all of it. I would argue a bit with his assertion about the evidence concerning how "mainstream" the pro-gay rights movement is. It's certainly a contestible point. The only real difference is that I support that agenda, while Scalia does not think it belongs in the judicial realm. I don't think that makes him a bigot.
Larry Solum does note what I thought the weakest element of Scalia's dissent:
Scalia charges the majority with inconsistency, and devotes a substantial portion of his dissent to Roe v. Wade, clearly weakening the dissent as an intellectual matter.
Solum has another objection, which I respond to here.
