Tuesday, February 16, 2016

Justice Scalia perceived that the greatest threat to self-government was the Supreme Court's tendency to read into the Constitution the values it would like society to adopt.

Supreme Court Justice Antonin Scalia, God rest his soul, was routinely described as a conservative, and so he was. He held fast to a lot of traditional values. He loved his church, his wife and nine children, and his country.

He favored small government over big, and local over national. He believed that change would be gradual and difficult, if things are working right.

But as a judge, he was a democrat, not a conservative, and his death diminishes by one strong voice our commitment to constitutional democracy.

Justice Scalia perceived that the greatest threat to self-government was the Supreme Court's tendency to read into the Constitution the values it would like society to adopt. That is why he opposed the court's decision to make abortion a constitutional right. "The permissibility of abortion," he said in 1992, is "to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting."

And that is why he opposed the court's decision to make same-sex marriage a constitutional right, notwithstanding the contrary laws in many states. "A system of government that makes the people subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy," he said.

The Constitution is silent about abortion and marriage. For Justice Scalia, that was an end of the matter. Disputes over those issues should be resolved by the elected branches of government, not by courts.

The Supreme Court, by contrast, has said that its job is to identify rights through the exercise of "reasoned judgment" (the phrase it uses in the marriage case), and protect them against democratic constraint.

Time was, when pointing out that your opponent was against democracy was a trump card. What has changed? To give the court its due, its position is that the people should not be allowed to impose their will through law when it would be immoral to do so. That is also a compelling argument, especially about moral issues like abortion and homosexuality.

Maybe the real difference between Justice Scalia and the court is one of moral authority -- whom should we trust to make decisions in matters like these?

Justice Scalia's commitment to democracy did not rest on a simple belief that it gives folks more of what they want. He had more faith in the collective wisdom of the people than in the court's "reasoned judgment."

Can it be, he asked about traditional marriage, that "an institution as old as government itself, and accepted by every nation in history until 15 years ago, [is] supported by [no]thing other than ignorance or bigotry"?

In Employment Division v. Smith, Justice Scalia justified his narrow reading of the Constitution's religious liberty guarantee with the same faith in democracy. As he observed: "A society that believes in the [constitutional] protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well."

It isn't enough to say, by way of rebuttal, that majorities can be rash or mistaken. In cases we deem sufficiently important (free speech, self-incrimination, cruel and unusual punishment), the text of the Constitution takes power away from majorities.

In other cases, the question is whether the democratic process is more likely to get the right answer than five tall-building lawyers who went to Harvard and Yale.

As Justice Scalia wrote in one of his early decisions, "it is all too easy" for such a small clique "to believe that evolution has culminated in one's own views." And as he never tired of pointing out, unlike the mistakes of democratic majorities, the "reasoned judgments" of the Ivy Leaguers can't be undone.