Justice Kagan often asks just the right question in statutory construction cases, and she should carry her logic over to constitutional questions as well.
I was saddened to read Judge Richard Posner’s vitriolic criticism of Antonin Scalia written in the New York Times with Eric Segall. Judge Posner’s scholarship was the most important contribution to law in the latter half of the 20th century. He reformed many areas of law through the application of economics and did so with clarity, wit, and panache. As Blackstone was the leading legal scholar of this time, so was Judge Posner during my first 25 years as a lawyer.
But being a scholar carries some obligations. And one of them in my view is the obligation of charity—to put the views you oppose in the best possible light before critiquing them. Or if that is not possible within the short space of an op-ed, at least not caricaturing them. I would think that also the obligation of one federal judge to another in the popular press.
And it is obvious from his vast body of work that Justice Scalia does not believe in deferring to the majority, when the Constitution actually prohibits what the majority wants to do. He emphatically does not, as the Judge Posner and Professor Segall claim, embrace “the model of the British Constitution” where the legislature once was the final word.
Justice Scalia rigorously enforces the First and Second Amendments in the Constitution and many other provisions as well, including many that defend the rights of unpopular minorities, like those accused of crimes, because they are in the Constitution. He objects to Obergefell and other Supreme Court decisions when they enforce rights that he cannot find in the Constitution. He believes that in the absence of a constitutional right, majorities of citizens within each state have the authority to pass laws even if they do so based on traditional morality. That is the significance of his reference to policy when he says, as quoted by the authors, that Obergefell allows:
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.
Because there is no right in the Constitution at issue, his contention is that the matter is one of policy, not law, and that judges are at a comparative disadvantage in deciding such questions because they are few in number and completely unrepresentative. Or perhaps I am a little harsh: the justices do come from fully four of the five boroughs in New York City!
Now maybe the justices should be permitted to make up new rights or there is a right to same-sex marriage fairly implied by the text of the Constitution. These are interesting questions, but the op-ed does not shed any light on them.
Judge Posner is a legal giant who has added greatly to the stock of human knowledge. I am baffled as to why he is stooping to distorting the positions of jurisprudential opponents.