“I write separately to call attention to this Court’s threat to American democracy,” Scalis wrote in a dissent.
The Justice stated that it’s not the substance of the ruling that is an afront to democracy, but said the manner in which the Court ruled has essentually made the nine justices in charge of Americans.
“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 wrote.
“The opinion in these cases is the furthest extension in fact — and the furthest extension one can even imagine — of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention.”
“This practice of constitutional revision (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,” he added.
Scalia was referring to what until now had been the right of states to set their own policies on marriage. He said that right was “American democracy at its best,” since it let people across the country weigh in and help determine state policies on marriage.
The Court decided 5-4 that the 14th Amendment’s requirement of “equal protection under the laws” trumped those state rights. But Scalia said there is “no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text.”
“This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government,” he wrote.
Scalia also slammed the “hubris” in the majority decision for discovering the right of people in the 14th Amendment that was overlooked by every state for decades.
“The opinion is couched in a style that is as pretentious as its content is egotistic,” he wrote.
Mist definitely.
Most definitely.
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Interesting that Scalia didn’t say this when he was part of a majority.