Incoherence With a Bias
by tristero
For years and years, I've been saying that Scalia's jurisprudence is incoherent, inconsistent, and bizarre, with a strong bias towards justifying the oppressive potential of the majority and and an equally strong contempt for the rights of minorities. But what do I know?
Here are two folks that do. Their conclusion: Scalia's jurisprudence is incoherent, inconsistent, and bizarre, with a strong bias towards justifying the oppressive potential of the majority and and an equally strong contempt for the rights of minorities.
A taste of the op-ed. The entire thing is worth reading:
In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”
Not content with throwing minorities under the bus, Justice Scalia has declared that Obergefell marks the end of democracy in the United States, stating in his dissent that “a system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The logic of his 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. The model he appears to be embracing is that of the traditional British Constitution; until recently, Parliament was deemed to be Britain’s “supreme court.” It could overrule judicial decisions, but courts could not invalidate parliamentary legislation.
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.”