More on Justice Scalia: A Reply to Two Critics

By Eric J. Segall and Richard A. Posner

             A fraction of the social media commentary on our New York Times op-ed about Justice Scalia accuses us of making misleading statements about him and his record. Ed Whelan at National Review Online argues that “rather than fairly” presenting Scalia’s positions, we resorted “to the cheap debater’s trick of setting up and knocking down a bunch of straw men.” John McGinnis, a law professor at Northwestern, wrote on his blog that we distorted the position of a “jurisprudential opponent.”

Our op-ed quoted Justice Scalia either directly from his opinions or from reliable accounts of his speeches. We argued that he can fairly be characterized as a judge who believes in “majoritarian theocracy.” We expressed skepticism that he will extend the harsh rhetoric in  his dissent in the Supreme Court’s recent decision creating a constitutional right to same-sex marriage and his passionate denunciation of what he deems the destruction of democracy by five “unelected lawyers” (the majority of his colleagues), to his own future votes; for he is one of the nine unelected lawyer “patricians” whose role in constitutional law he would dramatically reduce.

Justice Scalia has never written an opinion striking down a state or federal law under the first amendment’s establishment clause. He has voted to allow 1) the Ten Commandments to be displayed in public schools, 2) substantial governmental financial assistance to religious schools, 3) the siting of religious symbols all over governmental property, and 4) prayers at public school graduations, football games, and in legislatures. On the basis of his Establishment Clause opinions and his jurisprudence generally, we doubt that he would vote to invalidate the posting of a sign on the White House lawn stating: “We are a CHRISTIAN country and if you don’t like it, GET OVER IT.”

In his dissenting opinion in a case called Lee v. Wiseman, Justice Scalia said he would enforce the establishment clause only against governmental “acts backed by threat of penalty.” In a public speech in 2014, as reported by Shadee Ashtari, Scalia said that “the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion.”

It seems that the only majoritarian measures that Justice Scalia would vote to invalidate as violations of the establishment clause are those that either coerce people to engage in religion or punish them for doing so. But both the free speech clause of the first amendment and the equal protection clause of the fourteenth amendment would forbid these governmental measures anyway. So it seems that Justice Scalia’s interpretation of the establishment clause would allow the majority to press any and all theocratic measures other than those already prohibited by other constitutional provisions. So, yes, we think it is fair to say that Justice Scalia believes in “majoritarian theocracy.”

We quoted at length in our op-ed from Scalia’s dissent in Obergefell (the same-sex marriage decision) to give a sense of the ferocity of his denunciation of the majority opinion. He has made similar denunciations of his colleagues’ work before, especially in his opinions attacking Roe v. Wade and other abortion cases. He has also made numerous public statements about unelected lawyers (the Justices of the Supreme Court) ruining this country by overturning the decisions of elected politicians. Just a few weeks ago he said that elected officials who are not parties to Supreme Court cases are not bound to follow them if they believe they are unsupported by text or history. That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience.

We suggested that if he were sincere about these remarks, he might favor a parliamentary system over our constitutional democracy. But we also remarked that, based on his past votes, this is unlikely.

Justice Scalia has repeatedly voted to strike down state and federal laws the text and history of which did not compel invalidation. He voted to strike down Section 4 of the Voting Rights Act (despite its passage by a unanimous Senate), every affirmative action law he has ever faced, a wide variety of campaign finance laws, federal civil rights laws as applied to the states, laws restricting the private ownership of guns, and laws enacted under Congress’ commerce clause power regulating both private businesses and the states.

In light of the frequency with which he has voted to invalidate decisions by elected officials, perhaps Justice Scalia meant his characterization of the Obergefell decision as hastening the "end of democracy” to be tongue in cheek.