Thursday, December 03, 2015

A Deserved Take Down of Antonia Scalia's Frightening Tyranny of the Majority

Judge Posner and Nutcase Scalia
I began reading  legal decisions and appellate court opinions some 41 years ago as I began law school.  Since that time I have read many Supreme Court decisions which over the arch of history have pushed for more equality and less discrimination.  There have been stellar justices and there have been atrocious justices.  Antonin Scalia increasingly is headed toward falling into the latter category.  Perhaps most troubling is Scalia's contempt for the rights of minorities and he desire to impose his own ignorance embracing religious beliefs on all of society.  In a thoughtful op-ed in the New York Times Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit, and Eric J. Segall, a law professor at Georgia State University, slam Scalia's frightening views and the damage he seeks to do on the United States Supreme Court. Here are excerpts:

THE Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each.
In Lawrence v. Texas, for example, where the court invalidated Texas’ ban on homosexual relations between consenting adults, Justice Scalia complained that: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He added: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive.
[He]predicted in his dissent that the court would eventually rule that the Constitution protects the right to same-sex marriage. This June, Justice Scalia’s prediction came true in Obergefell v. Hodges. He has vented even more than his usual anger over this decision. It has become apparent that his colleagues’ gay rights decisions have driven him to an extreme position concerning the role of the Supreme Court.

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 . . . 

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.
[H]e 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.”

Obergefell seems to obsess him. . . . . The decision, he said, “had nothing to do with the law.”
The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical. It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy. . . . . The  implication is that if a majority of Americans reject same-sex marriage on religious grounds, the Supreme Court must bow.

It comes as no surprise that Justice Scalia also said that state and local officials who are not actual parties to Supreme Court cases have no obligation to obey judicial rulings that those officials think lack a warrant in the text or original understanding of the Constitution.

[F]ew Americans will agree with Justice Scalia that Obergefell, which conferred rights on millions of Americans, is comparable to Dred Scott, which denied rights to millions by ruling that slaves were not citizens and could not sue in federal courts.
I have argued for some time now that Scalia needs to either resign from the Court or be removed.  Frankly, I increasing believe he suffers from mental illness or severe psychological issues.  Sadly, Posner would make a far better justice on the Court than Scalia has ever been even in his less crazy early years. 

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