ANTONIN SCALIA pens his irascible, shoot-from-the-hip dissents “for law students”, but apparently judges sometimes read them too. One wonders whether the longest-serving justice on the Supreme Court is piqued or pleased by this pronouncement from Robert Shelby, a federal judge in Utah, who last month struck down as unconstitutional that state’s ban on same-sex marriage:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.

What, you ask? A liberal ruling on same-sex marriage drawing on a view from uber-conservativeAntonin Scalia? To be clear, Justice Scalia is no fan of gay marriage, and he lambasted the majority ruling in US v Windsor last June that struck down the section of the Defense of Marriage Act (DOMA) that defines marriage as the exclusive privilege of heterosexuals. In his angry dissent Justice Scalia ripped apart the majority opinion for, among other sins, drawing what he viewed as phony distinctons between DOMA and state-level same-sex marriage bans. But playing the Court’s Cassandra (as he did in his Lawrence v Texas dissent a decade earlier), Justice Scalia handed over an explosive box of ammunition to gay-marriage advocates. It is “inevitable,” he wrote, that the majority’s view of DOMA as “motivated by ‘bare...desire to harm’” same-sex couples will eventually lead the Court “to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

He then issued this prediction:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.

The other shoe Justice Scalia speaks of is Supreme Court recognition of a federally guaranteed right to same-sex marriage. The rulings last June did not go this far. The justices gutted DOMA and narrowly upheld a ninth-circuit decision protecting same-sex marriage in California, but even the most liberal judges were wary of pronouncing a constitutional right for gays and lesbians to wed nationwide. So the other shoe has not yet dropped, and it may not fall for a few seasons, but Justice Scalia’s fears have been set in motion. The same reasoning Anthony Kennedy relied upon in the Windsor majority opinion, Judge Shelby noted in his December decision, applies to a state-level ban on same-sex marriage. It is, in his words, “the logical outcome of the Court’s ruling.”

But how long will this take? The Court entered the fray again this week when the justices stayed Judge Shelby's December ruling pending a fast-tracked appeal to the tenth circuit that, judging by previous statements of the empanelled judges, is likely to be successful. If the tenth circuit overturns Judge Shelby's decision, same-sex marriage advocates will likely petition the Supreme Court to review that ruling. Will the justices take the case? It depends on whom you ask. Adam Liptak of the New York Timesthinks the Court will wait until all but a handful of states recognise same-sex marriage before issuing a sweeping decision on the matter. For Tom Goldstein, the range is “five to ten years”. Several commentators predict an even swifter Supreme Court ruling on the constitutionality of state bans on homosexual marriage. Rick Hasen, for one, thinks it may come as early as next year: "I expect within a year or two this case or another will make it to the Court in a way that leads the Court to decide the same-sex marriage issue on the merits," he writes. "There are just too many questions, and so much litigation, for the Court to avoid the merits for too long."

Whenever the day of judgment arrives, do not expect Justice Scalia to suddenly embrace a constitutional right to same-sex marriage. It is almost unthinkable that he will follow the logic of Windsor where he says it inevitably leads. Laurence Tribe captured this hypocrisy well when he called Justice Scalia's Windsor dissent "vitriolic and internally inconsistent":

[I]f Justice Scalia is still a member of that tribunal [when the Court takes a case challenging a state same-sex marriage ban], we can all be sure that he will not treat the Windsor majority opinion as controlling precedent for striking down such a ban. To suggest otherwise now is worse than cynical. It is flatly false. And it gives the wrong signal to lower courts, both state and federal. It suggests to them that they ought to feel free to track what the Supreme Court says rather than to fathom, and then do their best to follow, the logic of what it does.

"Analytical reason alone," Mr Tribe adds, does not decide cases as culturally and religiously explosive as same-sex marriage. The Court often demurs when asked to push society too far, too fast. This week's drama over the Utah ruling gives an early indication that, in the justices' eyes, the time is not quite right to sweep away all state bans on same-sex marriage. But when that time comes, Justice Scalia won't be surprised. He has already rued the day.