Judge Richard Posner is taking Justice Antonin Scalia to task — again — and it’s on a very familiar topic.
‘Round these parts, Judge Posner is known for his willingness to take swings at those above him in the judicial hierarchy, and in a recent op-ed in the New York Times (co-written with Georgia State Law professor Eric J. Segall), he does just that.
As any legal eagle worth their argle-bargle knows, Scalia wrote a pithy dissent in Obergefell v. Hodges, which extended marriage equality to all Americans. Since losing that fight, Scalia has been venting his frustration in various speeches, declaring the end of democracy. He’s been spouting the line that it is the legislature’s responsibility to protect minorities and since the judiciary did the protecting in Obergefell, the end is nigh.
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Judge Posner’s method of responding to this argument is to take it to its logical conclusion:
The logic of his [Scalia’s] position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy.
Hmmm, that… seems like the opposite of the Supreme Court’s job.
We doubt that Justice Scalia would go that far, for he has repeatedly voted to strike down statutes that he believes violate the First Amendment and various federalism provisions of the Constitution, as well as affirmative action measures that he thinks are in conflict with the 14th Amendment.
But who knows? Maybe he’ll now cease voting to strike down statutes under any provision of the Constitution, as otherwise he might be thought of as one of those “unelected lawyers” who so threaten our democracy. Not only an unelected lawyer, but — a patrician. For he said in his Obergefell dissent that “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”
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I see what you did there, pointing out the inherent hypocrisy in Scalia’s position. Well played, sir, well played.
Justice Scalia’s Majoritarian Theocracy [New York Times]
Earlier: Posner Pwns Scalia
The Benchslap Dispatches: Posner v. Scalia — Is It Personal?
Reverse Benchslap Of The Day: Judge Posner Smacks Chief Justice Roberts