The Supreme Court: A Danger to American Democracy


All of Justice Antonin Scalia’s judicial opinions tend to be memorable, but I think his dissent in OBERGEFELL v. HODGES will perhaps be his most cited opinion in what I expect to be a dangerous time for the American Republic over the next few decades.  Here are quotes from his dissent to remember:

1.  It is of overwhelming importance, however, who it is that rules me.  Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. 

2.  This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.

3.   Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.

4.  This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.  Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.

5.   The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And 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. 

6.  But what really astounds is the hubris reflected in today’s judicial Putsch.  The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds— minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly— could not.

7.  These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.

8.  The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

9. Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall.  The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”  With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.

As Justice Scalia notes, our most precious civil right is the right to rule ourselves, and that right the Supreme Court has been taking away from us, decision by decision, for decades.

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  1. You left out the best part in footnote 22: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

  2. Roberts’ two Obamacare decisions accelerated the post constitutional era. After those decisions it became apparent that henceforth the constitution could be treated as yesterday’s news. Scalia captures the urgency of the moment and something which has nothing to do with the merits of the issue. Federalism is dead. Freedom of political speech….dead. Freedom in the exercise of religion….dead. The second act of the post constitutional era starts now and it will be ugly. There are the obvious things like church tax status, mandated school gender curriculum, etc, but there is the 5 to 10 year wave of assaults such as shutting down this website and others over “hate speech”. You must understand this is not about homosexuals, but about the 100 year progressive war against the restraints on government power once expressed in the Constitution. Next up…..the final assault on the family.

  3. Since performing gay marriage ceremonies BEFORE the decision didn’t require Justices Ginsberg & Kagan to recuse themselves in this case will someone, please, invite Justice Scalia to keynote the next Pro-Life conference? He’s a great speaker, and no conflict of interest would exist.

  4. Within the past 5 minutes a small statue within our house of Our Lady of Guadalupe, for no apparent cause, fell and broke in two.

  5. Donald—you blogged about the juvenile reaction by corporatist to the Conferate battle flag. Watch next what happens in Hollywood and the business world. Some of this takes place now but it will be far worse

    Signed pledges upholding homosexual or gender diversity
    Corporate retailers restricting business with churches
    Unmitigated Hollywood attacks and refusal by investors to finance faith based movies
    Government contractors will be required to have homosexual happy talks
    The litigation business will flourish with the grievances of homosexualists…..and woe be to the litigation lawyer who refuses to undertake representation for claims of homosexual grievances

    The imagination for attack on those churches which refuse to submit will know no bounds. And unlike abortion, speech against the homosexual agenda can be targeted regardless of Kennedy’s weak deference to what he described as acceptable religious “advocacy”. When you read Kennedy’s Windsor opininoin on DOMA the outcome of the fight between religious freedom vs homosexual “marriage” is beyond worrisome…..almost foregone.

  6. Oh, I think the Homosexual Movement has its high tide today, just as the pro-abort movement had it with Roe. The decision today by the Court I believe will re-energize social conservatives. We shall see.

    Oh, and Apple, hit by a lot of negative publicity, is beginning to walk back its ban:

    Social conservatives have to realize that we are in a long term fight and fight smart. For those who support traditional marriage, lessons learned in the long fight against abortion are instructive. Above all let us be of good cheer, and go happily about our task. God placed us in this time for a purpose, and we must not disappoint Him by being downcast and fearful. Let gloom and despair be present only among the Devil and his disciples!

  7. The danger of SCOTUS to the Republic has existed since the Dred Scott decision. When it counts, SCOTUS can be depended on to decide wrong.

  8. Clearly the republic that is the US is not working [I have concluded for some time now that it couldn’t because it was flawed from its very inception]. If there was any republic that looked like it would it was the US, my question then is if there is any man-made republic that can work.

  9. Face it. We r a post constitutional country. Self gov’t died with the SCOTUScare ruling where the majority of SCOTUS let us know that it didn’t matter WHAT we wrote into our laws–that 5 lawyers on that court wud be telling over 300 million of us how we will live–under the coercive force of govt. I hope we don’t end up in another civil war–but I seriously expect it.

  10. “Lincoln’s rejection of the Dred Scott decision’s account of congressional authority was not intended as a mere theoretical exercise. His aim was not to see his counter-argument published in a learned journal. Rather, he made this rejection the basis of proposed political resistance to the Court’s overreaching…Just as the Taney Court told Americans in the 1850s that they were not permitted to govern themselves on the slavery issue, so today Justice Kennedy and his liberal collaborators on the Court are presuming to tell the present generation of Americans that they have no right to self-government on the question of defining marriage. That weighty question, they are telling us, will be decided by our betters—that is, by them.”

  11. “Yet at the heart of the Civil War, the crisis that triggered it, and the changes that it brought were enormous constitutional issues. Indeed, it is no exaggeration to say that the Civil War was fought over the meaning of the Constitution, and over who would have the ultimate power to decide that meaning. The Civil War decided—on the battlefields rather than in the courts—the most important constitutional questions in our nation’s history: the nature of the Union under the Constitution, the status and future of slavery, the powers of the national government versus the states, the supremacy of the Constitution, and the wartime powers of the president as commander in chief. It was the Civil War, not any subsequent judicial decision, that “overruled” the Supreme Court’s atrocious decision in Dred Scott v. Sandford creating a national constitutional right to own slaves.”

  12. “No provision in our Constitution ought to be dearer to man thanthat which protects the rights of conscience against the enterprises of the civil authority.” –Thomas Jefferson to New
    London Methodist, 1809.

  13. “Clearly the republic that is the US is not working [I have concluded for some time now that it couldn’t because it was flawed from its very inception]. If there was any republic that looked like it would it was the US, my question then is if there is any man-made republic that can work.”

    Our republic works just fine when it is tried…the 3 branches do their jobs…citizens do their part– greed, power, ambition, lack of the application of moral, lack of the citizenry paying attention, etc have all damaged the function of our republic until it has died a slow gasping death.

    Thomas Jefferson forsake this very type of Judicial tyranny & Abe Lincoln defined it for us as well.

    It seems to be the very sin nature of man that has brought our republic down.

    Abe Lincoln predicted that a court that was allowed to legislate from the bench would lead to tyranny in his 1st Inaugural address.

    “If the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

    In the article below, it is argued that an improper/weak response of the other 2 branches of govt to activist courts is the cause of the republic’s downfall. I think that point has great validity. like pastors hiding behind their tax exempt status to avoid controversy and needed confrontation with the culture, politicians have often hid behind a court ruling out of weakness & to avoid taking full responsibility for the authority given them under the law. It really is easier, at least on the front end, to let others be responsible for the tough calls of freedom.

    John Adams said the following: “We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge or gallantry would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution is designed only for a moral and religious people. It is wholly inadequate for any other.”

    Benjamin Franklin is often having indicated that our republic would endure until the people started voting themselves other people’s money.

    I, personally, believe the failures/destruction of the family and the failure of common k-12 education due to federal meddling are enough over time to bring us down.

    We are literally dealing with all of these issues and more–at the same time.

  14. Judicial activism has been a threat to American liberty for decades. It started long before Roberts was named Chief Justice.

    I am almost 52. I remember the court-ordered school desegregation cases in the 1970s as I was in school myself then. There were riots in Boston. One city after another lost school desegregation cases, followed by court-ordered busing of schoolkids across cities. Massive middle class flight ensued. Busing was a failure.

    Roe v Wade was ruled under false pretense. There was the Kelo decision empowering government to seize private property.

    Kennedy, the dimwitted intellectual lightweight that he is, has taken it upon himself to legitimize everything about homosexuality. There was the Texas sodomy decision and now this.

  15. If what you really want is a democracy, try the British system:-
    1) The fundamental principle is that Parliament (the Legislative branch) can make and unmake any law whatsoever.
    2) The Cabinet (the Executive branch) is a committee of the Legislature that the Lower House can dismiss at pleasure by a vote of no confidence.
    3) In the event of a vote of no confidence, or if the Legislature will not pass his measures, the Prime Minister (the head of the Executive) can” go to the country,” that is, call a general election and invite the voters to return members who will back him, which the voters may or may not do.
    The “checks and balances” are provided by the Executive’s fear of losing its majority and the individual members’ fear of losing their seats in a snap election.

  16. Five black-robed nitwits think they have authority to reverse 25,000 years of human biology, culture, and society.
    The SC effectively ruled that a dog’s tail is a leg. However, the mongrel still has only four legs.
    Yesterday, the idiots consigned themselves to irrelevancy. I no longer consent to be ruled.
    And, America have fully entered the post-Constitution era and it will not be pretty.

  17. Penguins Fan wrote, “That’s not gonna happen here, Mr. Paterson-Seymour.”
    I know.
    For historical reasons, to an American, freedom primarily means being free from interference, especially government interference and a strong government is feared as a threat to freedom.
    Europeans, by contrast, see government action as the consummated result of their own organized wishes. Of course, Europeans can be very readily persuaded that self-serving deputies are betraying the people’s mandate, in the service of special interests; in fact, the political class is held in great contempt. Nevertheless, no one believes that curbing the powers of government is desirable, or even imaginable: the government is the appointee and agent of the people; to curb the government’s powers is to curb their own.

  18. The ACLU quietly announced that it would no longer support religious freedom. The DOJ is questioning whether Church’s that disagree or do not support homosexuality should keep their Tax Exemption. The Quisling, Ted Olson will now focus on having the Bible proclaimed hate speech as they have in parts of Canada. And with very little fan fare the liberals in congress will force through legislation lowering the age of consent to 12 years old.
    “Liberalism is the transformation of mankind into cattle”

  19. Since the Supreme Court has become merely a political body that talks about law–politicians with robes for credibility—I suggest we do away with it, as we already have politicians ignoring law in our other bodies of government.
    For this we had a revolution?
    Long live the king!

  20. The Legislature surrenders its prerogative to the Executive who acts in its stead, while the Supreme Court usurps the prerogative of the Supreme Being. What could go wrong?

  21. There is more defeatism here than on the designated defeatism thread!
    I am glad there is some love expressed for mystical aphorisms. I must admit it as a new favorite of mine.

    I for one would like to get a notebook and write down all of the predictions made here and see how many end up coming true. That will be the point for agony and despair.

  22. Our federal government, and many of our state governments, are losing more and more legitimacy. We are not bound to obey an unjust law. My question is how far are we obligated to obey an illegitimate government? It seems that in some cases we must do so only insofar as they have a partial measure of legitimacy and rule justly. In other cases we would be required to resist an illegitimate government to the full extent we are able to, as happened during the Cristero War in Mexico. I think we are at the first point right now. We can safely just ignore the government on those points where it violates morality and justice. Unfortunately, the government is moving to the point where we may need to find a little bit of Cristero in all of us. I pray it doesn’t reach that point.

  23. If possible, emigrate to a fiscally-solvent red state with a limited, rational state government.

    Feign obedience and covertly resist in every possible way.
    The national regime is post-Constitutional. It has usurped far too much power. All three branches of the Federal government are bat-crap crazy/stupid. Everything they touch will be wrecked.
    You need to plan and prepare for the “zombie” apocalypse, which by comparison will make look like Eden the Great Depression and post-WWII Germany and Japan. There will be no Marshall Plan.

  24. I suggest we do away with it, as we already have politicians ignoring law in our other bodies of government.

    It’s quite simple. Within the law, the Congress determines the jurisdictions of the courts. From now on the troublesome appellate courts will each have as their jurisdiction one square yard in the middle of Sunset Blvd. Within the law, the courts do not operate without appropriations. Staff, what staff Mr. Justice Roberts? No staff, plant, or equipment. Within the law, they all get paid in potatoes once a year. Not within the law (but they cannot complain without being laughed at), they’re all declared in a state of bad behavior by a joint resolution of Congress and exiled via bill of attainder to Argentina. Of course, the Republican caucus in Congress would never have the cojones to do any of this.

  25. Our federal government, and many of our state governments, are losing more and more legitimacy

    Yes. Never in my lifetime (and, I think it might be said) not for a verrry long time has public life been so suffused with humbug. I doubt an honest word is ever uttered anymore outside of odd little corners like this one and the object of the opposition is not persuasion but humiliation to render the resistant complicit. It is all coming to a head when this country needs our most capable and prudent men in charge and the men in charge are vain fools like Anthony Kennedy and crudniks like John Koskinen.

  26. in fact, the political class is held in great contempt. Nevertheless, no one believes that curbing the powers of government is desirable, or even imaginable: the government is the appointee and agent of the people; to curb the government’s powers is to curb their own.

    And your point is what, that Europe is populated with people who cannot recognize a logical contradiction?

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