Segall/Posner Follow-Up: Countering Countermajoritarian Accusations

By Michael Dorf

I am aware that today is the SCOTUS oral argument in Fisher v. University of Texas at Austin (Fisher II). I wrote a Verdict column and a blog post about Fisher II.  I spoke with Adam Liptak, who wrote about the case in The New York Times. I have fielded calls about Fisher II from other reporters as well. Everyone wants to know whether the Court will use the case to reconsider its approach to affirmative action in higher education. That's possible, I suppose, but it seems unlikely, given the Texas-specific aspects of the case. For now, I really don't have anything to add. If something interesting happens during the oral argument today, I might use my next post (on Friday), to discuss that. Meanwhile, on to another topic.

In their post here on DoL on Monday, Prof. Segall and Judge Posner defended their NY Times op-ed of last week, in which they accused Justice Scalia of promoting a "majoritarian theocracy." When I used the DoL Twitter account to retweet a link to the op-ed, some readers tweeted back at me their points of disagreement with Segall and Posner. For two reasons, I chose not to reply via Twitter. First, I find myself incapable of making a rational, much less a nuanced, argument in 160 characters.

Second, I do not always agree with everything, or even the gist of, what my co-bloggers write here or in other fora. For example, although I think that ideological factors play a large role in Supreme Court decisions, Prof. Segall and Judge Posner think they play a still larger role. Although the bloggers on this site are generally sympatico and I have great respect for everyone who writes here regularly or occasionally, I prefer to let my co-bloggers speak for themselves when challenged.

Having said that, I do want to discuss one kind of criticism of the Segall/Posner position to which they did not directly respond--and which has been raised in some tweets criticizing their original op-ed and their follow-up blog post. The criticism is encapsulated in the following two tweets (from two different readers) that were directed at me after the Segall/Posner post went up on Monday:
Tweet 1: Still doesn't meet Scalia's arg-namely, text+history didn't compel result in EC cases, Obergefell, did in others. 
Tweet 2: They only said things about democracy etc because the "liberal Justices" didn' care abt what Constitution/law actually says.
In other words, according to these tweeters, Justice Scalia was not saying in his Obergefell dissent and subsequent speeches criticizing Obergefell that the Supreme Court should not issue countermajoritarian rulings; he was saying that the Supreme Court should not issue wrong countermajoritarian rulings. When Justice Scalia invokes the Constitution to block democratic majorities from taking their preferred course of action--subjecting states to civil rights damages actions and federal mandates; campaign finance reform; strong gun control; race-based affirmative action; etc.--that's not a problem because (as tweeter 1 would have it), the Constitution compelled those results. However, when the Court says that states cannot deny two people of the same sex the right to marry, that's anti-democratic because the Constitution doesn't really require that result.

But of course everyone would agree that the Court shouldn't decide any cases wrongly. Perhaps the tweeters and Justice Scalia are also saying that the stakes are higher when the Court wrongly decides that some constitutional provision blocks action by elected officials than in other cases, but everyone agrees with that too. So the core of the defense of Justice Scalia must be--as suggested by the tweets themselves--that Justice Scalia's supposed methodology of paying close attention to the text of the Constitution ensures that he's usually (always?) right, whereas the "liberal" Justices' supposed methodology of making stuff up ensures that they are usually (always?) wrong.

This view partly trades on a familiar but nonetheless false dichotomy between so-called "enumerated" and "unenumerated" rights. The Constitution's text protects "speech" and "arms" but not "same-sex marriage" or "abortion," the claim goes, so countermajoritarian decisions striking down campaign finance regulations and gun control are unproblematic, whereas rulings striking down opposite-sex-only marriage laws and abortion restrictions are judicial usurpation. But of course the words "speech" and "arms" are no more self-defining than "liberty" and "equal protection."

At this point, we can expect Justice Scalia's defenders to pivot to critiques of the doctrine of substantive due process. I think those critiques are either wrong or, if they're right, that they take down much of constitutional law--including, for example, incorporation of the substantive rights of the Bill of Rights against the States. Justice Scalia has said that he acquiesces in the use of substantive due process to incorporate the Bill of Rights against the states because "it is both long established and properly limited," but both propositions are dubious. Incorporation doctrine is mostly a product of the 1950s and 1960s, while the voters of Chicago who had their gun control law invalidated in the case in which Justice Scalia made that claim might well disagree that the doctrine is limited.

But in any event, the critique of substantive due process is really beside the point because, even if one thinks that constitutional adjudication under the Bill of Rights and incorporated rights is based on rock-solid, discretion-free, objective judgments while other substantive due process adjudication relies on judicial whim, that distinction doesn't account for all of Justice Scalia's own countermajoritarian rulings. Justice Scalia has authored or joined in decisions finding a non-textual principle of state sovereign immunity and one forbidding federal "commandeering" of state and local legislative and executive officials. And he defends his anti-affirmative-action jurisprudence on the basis of a text that he wishes were in the Fourteenth Amendment but in fact is not.

To be clear, I'm not saying Justice Scalia is wrong in all of these decisions. Maybe some readers think that all or most of Justice Scalia's votes to displace majoritarian decisions making with the decisions of the four or more lawyers who agree with him rely on correct interpretations of the Constitution, but if so, he and his defenders should say that.

The point I'm making here is essentially non-ideological. Liberals also sometimes accuse conservatives of countermajoritarianism when what they mean is that the conservatives are wrongly striking down laws. For example, Justice Ginsburg's partial concurrence in NFIB v. Sebelius includes the following:
In the early 20th century, this Court regularly struck down economic regulation enacted by the peoples’ representatives in both the States and the Federal Government. See, e.g., [cases, including] Lochner v. New York, 198 U. S. 45, 64 (1905). The Chief Justice’s Commerce Clause opinion, and even more so the joint dissenters’ reasoning, bear a disquieting resemblance to those long-overruled decisions.
But just as Justice Scalia's accusations of countermajoritarianism in the gay rights cases only have bite if one also thinks that the majority is wrong, so too Justice Ginsburg's parallel accusations only have bite if one agrees with her on the substance. Justice Scalia and Justice Ginsburg each make substantive arguments for their respective positions in these and other cases, and different readers will find them more or less persuasive. In each case, selectively playing the countermajoritarian card doesn't really add anything.