Scalia: Supreme Court now a 'threat to American democracy'

[Bigun]

Scalia: Supreme Court now a 'threat to American democracy'

By PETE KASPEROWICZ • 6/26/15 10:57 AM
Supreme Court Justice Antonin Scalia savaged the Court's 5­4 decision on Friday that said same­sex marriage is a constitutional right in all 50 states, by saying it makes the Supreme Court a threat to democracy in the country. "I write separately to call attention to this Court's threat to American democracy, " he wrote in a dissent, just a day after he dissented in a decision that upheld a key part of Obamacare.

Scalia said he didn't care about the substance of the ruling, but said the way the Court ruled means the nine justices are now essentially 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.

In a footnote, Scalia wrote that if he ever joined an opinion that started, "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity," that he would "hide my head in a bag."

"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 wrote.

http://www.washingtonexaminer.com/scalia-supreme-court-now-a-threat-to-american-democracy/article/2567108#.VeyB3E6ETmE.facebook

[Bigun]

Justice Scalia is EXACTLY right!

[bkepley]

Draft Scalia.

[aligncare]

Justice Scalia is EXACTLY right!

Scalia, mio fratello, is right.

Mark Levin wrote a heavily footnoted book called Men In Black detailing just how the court has lost its way.

[PzLdr]

The poison chalis of the Court is called precedents. Conservatives honor it. slavishly. Liberals ignore it. Or use it when it suits them. Want to fix the Court? Three solutions: [1] Elect Conservative ACTIVIST judges, who hold precedent in as much honor as liberals. Use them to overturn ALL the Liberals' sacred cows. THEN elect  strict constructionists. [1] Overrule MARBURY vs. MADISON, the John Marshall construct that gave the Supreme Court the powers the Constitution SPECIFICALLY did not. Limit the Court to the powers the Constitution gave it. [3] Amend the Constitution allowing a 2/3 vote by the Congress to overrule ANY Supreme Court decision, and applying term limits to the Justices.

[rangerrebew]

Its also a more immediate danger than global goreing.

[jmyrlefuller]

Draft Scalia.

Why? He's more powerful in his current position—which is the whole point.

[aligncare]

Why? He's more powerful in his current position—which is the whole point.

I think bkepley was being sarcastic again. The little scamp.

[bkepley]

I think bkepley was being sarcastic again. The little scamp.

No I was not and who would be better than Scalia at choosing his replacement?

[aligncare]

No I was not and who would be better than Scalia at choosing his replacement?

My apologies, then.

I don't think Scalia would want the job of president. Scotus is a pretty cushy gig.

[bkepley]

My apologies, then.

I don't think Scalia would want the job of president. Scotus is a pretty cushy gig.

That is an insult really.  If he refused (and I don't think he would) it wouldn't be for a reason like that.

[Fishrrman]

[[ Scalia: Supreme Court now a 'threat to American democracy' ]]

Is this what they mean when they say "straight out of the horse's mouth" ...?

BTW, I agree.

The Constitution should be amended to permit either the Congress or the States to nullify Supreme Court decisions with a significant supermajority (say, 3/4 of the Congress or 3/4 of the states).

Neither the president nor the Congress can enact "laws of the land" unilaterally.
Why should the third branch of government have this ability?

I'm certain -- CERTAIN -- that this is not what the Founders intended in their original writing of the Constitution.

[jmyrlefuller]

The Constitution should be amended to permit either the Congress or the States to nullify Supreme Court decisions with a significant supermajority (say, 3/4 of the Congress or 3/4 of the states).

There is; it's called the amendment process. 2/3 of Congress and 3/4 of the states are required; there's also the Article V convention that doesn't require congress but still requires 3/4 of states. But the problem is, we're divided so bitterly that any court ruling that draws enough support from the majority of justices is certain to draw enough support to block any amendment. I only recall a couple successful ones: the 13th (nullified Scott v. Sanford) and 16th (nullified a court ruling declaring certain progressive income taxes unconstitutional). There was one time an Article V Convention came within one state of getting invoked in the 1960s, when Everett Dirksen led an effort to nullify Reynolds v Sims. (Dirksen died and they abandoned the initiative once the newly court-mandated gerrymandered legislatures took control.)

[aligncare]

[[ Scalia: Supreme Court now a 'threat to American democracy' ]]

Neither the president nor the Congress can enact "laws of the land" unilaterally.
Why should the third branch of government have this ability?

I really like the reasoning here, Fishrrman.

Call me crazy, but I think so many of our problems in America today can be laid squarely at the feet of lawyers. I remember when they first began allowing attorneys to advertise. That's when the commercials started: "Injured? We'll get you money!" Slip and fall lawyers destroyed America.

[Oceander]

The poison chalis of the Court is called precedents. Conservatives honor it. slavishly. Liberals ignore it. Or use it when it suits them. Want to fix the Court? Three solutions: [1] Elect Conservative ACTIVIST judges, who hold precedent in as much honor as liberals. Use them to overturn ALL the Liberals' sacred cows. THEN elect  strict constructionists. [1] Overrule MARBURY vs. MADISON, the John Marshall construct that gave the Supreme Court the powers the Constitution SPECIFICALLY did not. Limit the Court to the powers the Constitution gave it. [3] Amend the Constitution allowing a 2/3 vote by the Congress to overrule ANY Supreme Court decision, and applying term limits to the Justices.

Overruling Marbury v. Madison would be a very bad idea.  I would much rather have 5 non-political/non-elected intelligent, generally dispassionate, judges deciding when the executive has gone to far than to have an executive who gets the last word on what the Constitution allows and what it does not.

[truth_seeker]

Good luck with 2/3 or with 3/4.

In case you missed it, that did NOT come about for the Iran nuclear restraint issue this month.

So it is highly unlikely for almost any issue on the horizon. What Wyoming may desire, almost certainly New York does not, and vice versa.

[Godzilla]

Overruling Marbury v. Madison would be a very bad idea.  I would much rather have 5 non-political/non-elected intelligent, generally dispassionate, judges deciding when the executive has gone to far than to have an executive who gets the last word on what the Constitution allows and what it does not.

Yep.

[Godzilla]

If Scalia finds the Supreme Court a threat to American democracy, then I had two things to say about that:

1. Why does Scalia think America is a democracy?  It is a Constitutional Republic.
2. If the Supreme Court is a threat to America, that means that Scalia is a threat to America, as he is part of it.

[Oceander]

If Scalia finds the Supreme Court a threat to American democracy, then I had two things to say about that:

1. Why does Scalia think America is a democracy?  It is a Constitutional Republic.
2. If the Supreme Court is a threat to America, that means that Scalia is a threat to America, as he is part of it.

Good points!