Amidst the rich legacy that Justice Antonin Scalia left to the American people after more than 30 years serving on the Supreme Court, his last and one of his greatest statements against judicial activism came after the notorious 2015 Obergefell v. Hodges decision that trampled the democratic process, legislating same-sex marriage for all 50 states.
Justice Scalia’s major contention with the court’s decision had little to do with same-sex marriage at all and everything to do with democracy and the rule of law. It is not of special importance to me what the law says about marriage, he writes, but it is of overwhelming importance “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,” he said.
In his nine-page dissent, Scalia ripped into the majority opinion, calling it a “judicial Putsch” that poses a “threat to American democracy.” He added 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 Court’s “naked judicial claim to legislative—indeed, super-legislative—power” bulldozed the right of the People to self-government, said Scalia, which represents the greatest threat to the American experiment in self-government.
In his scathing rebuke of the ruling, Scalia said that the majority had reached “an opinion lacking even a thin veneer of law.”
He noted that at the time the Constitution’s 14th Amendment was ratified in 1868, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so,” which makes it extraordinarily suspicious that the 2015 court could suddenly find differently.
In what amounted to a brief history lesson, Scalia underscored the gravity of the Court’s action by comparing it to England’s treatment of the American colonies that ignited the movement for American independence. The justice said that in its hubris, the majority decision had carried out a more serious offense than the one that sparked the Boston Tea Party and later the American Revolution itself.
Indeed, wrote Scalia, “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.”
When the Supreme Court no longer acts like a judicial body and instead usurps the power to enact legislation, as it did in its infamous June 26 ruling, it radically oversteps its mandate and is worthy of nothing but scorn.
As millions of Americans pause to bid farewell to this brilliant and outspoken legal scholar and judge, his warnings of the dangers of judicial activism must not fall on deaf ears. In an election year, the direction of the Supreme Court hangs in the balance.
Antonin Scalia, RIP.
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