On Monday morning, the last day of this Supreme Court term, there were no rainbow flags or same-sex marriage protesters left on the marble plaza before the the nation’s highest court. But inside the court room, Scalia wanted to talk about Friday’s 5-4 decision making same-sex marriage legal throughout the United States, despite the fact that there were three other opinions to issue. In an extraordinary reading from the bench in a death penalty case in which he was actually in the majority, Scalia managed to dissent on gay marriage for a second time. “Last Friday, this court took away from the people the right to decide on same-sex marriage on the basis of their own policy preferences,” he said, taking a shot at Justices Ruth Bader Ginsburg and Stephen Breyer for suggesting in their written dissent to the case being announced that the death penalty is unconstitutional. It was, in other words, a dissent to a dissent.
The above-linked report notes that oral dissents “considered extraordinary.”