By Ben Kamisar
Justice Antonin Scalia is chastising the Supreme Court’s landmark decision legalizing same-sex marriage on Friday as an affront to the principle of democratic rule.
Scalia argues in his opinion that the court is increasingly creating policy rather than serving as a neutral arbiter.
“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.”
Scalia blasts the majority opinion as “couched in a style that is as pretentious as its content is egotistic.”
“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,” he writes in a footnote needling the majority for its bombastic language.
It’s the second day in a row that Scalia has blasted the majority’s opinion. On Thursday, he accused the court of creating “SCOTUScare” with a ruling that said the federal government could provide ObamaCare subsidies to consumers on a federal exchange.
Chief Justice John Roberts wrote that decision and was at the end of Scalia’s criticism, but on Friday they were on the same side.
Scalia wrote his own dissent even though he wrote that he agrees with everything that Roberts wrote in his own dissenting opinion, in order to “call attention to this court’s threat to American democracy.”
Scalia admits that the societal outcome of the decision isn’t particularly important to him.
“The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can afford them favorable civil consequences,” he writes.
But he wrote that he views the opinion as an overreach by the court, and chides the justices as “hardly a cross-section of America.”
He notes that all the justices graduated from Harvard or Yale Law School, eight grew up on the coasts, and that not one is an evangelical Christian or a Protestant, religions that make up significant chunks of the American population.
“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,” he writes.
This story was updated at 11:15 a.m.