In the New York Times, Judge Richard A. Posner and Eric J. Segall: Justice Scalia’s Majoritarian Theocracy. From the core of the argument:
… 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.”
(Thanks to Michael Perry for the pointer.)
Ed Whelan responds at NRO. On the point above:
… Scalia, in his Obergefell dissent, makes crystal-clear that he is not contesting the Court’s authority to enforce rights that actually are in the Constitution. (See, e.g., slip op. at 3.) What he objects to is that the Obergefell majority is making “a naked judicial claim” to unconstrained power to concoct any new liberty it favors, no matter how untethered to—indeed, contrary to—the Constitution’s text and our constitutional tradition. One might, of course, disagree with Scalia’s assessment of the majority opinion (though one would be wrong to do so.) But for present purposes the relevant point is that no competent legal mind could fairly extract from Scalia’s dissent the proposition that Posner derives and attacks.
UPDATE: John McGinnis comments at Liberty Law Blog: Posner’s Unjustified Attack on Scalia.
… [B]eing a scholar carries some obligations. And one of them in my view is the obligation of charity—to put the views you oppose in the best possible light before critiquing them. Or if that is not possible within the short space of an oped, at least not caricaturing them. I would think that also the obligation of one federal judge to another in the popular press.
And it is obvious from his vast body of work that Justice Scalia does not believe in deferring to the majority, when the Constitution actually prohibits what the majority wants to do. He emphatically does not, as Judge Posner and Professor Segall claim, embrace “the model of the British Constitution” where the legislature once was the final word.
Justice Scalia rigorously enforces the First and Second Amendments in the Constitution and many others provisions as well, including many that defend the rights of unpopular minorities, like those accused of crimes, because they are in the Constitution.He objects to Obergefell and other Supreme Court decisions when they enforce rights that he cannot find in the Constitution. He believes that in the absence of a constitutional right majorities of citizens within each state have the authority to pass laws even if they do so based on traditional morality. …
I pretty much agree with Whelan and McGinnis, but I do think there is some risk to originalists in relying too heavily on arguments based on majoritarian or democratic values. Originalism is in some tension with those values, because it calls on judges to reject the will of the majority when the Constitution's original meaning says otherwise. So originalists need an explanation for why democratic values should be trumped sometimes (by the original meaning) but not other times (by judges' policy preferences). Simple appeals to majoritarianism do not provide this explanation. (I agree, though, that Justice Scalia — despite his rhetoric in some cases — surely understands this and has a well-developed idea of the explanation).
Posted at 6:04 AM