For the Left and neo-libertarians, process doesn’t mean a damn thing.
Amidst the rich legacy that Justice Antonin Scalia left to the American people after more than 30 years serving on the Supreme Court, his last and one of his greatest statements against judicial activism came after the notorious 2015 Obergefell v. Hodges decision that trampled the democratic process, legislating same-sex marriage for all 50 states.
Justice Scalia’s major contention with the court’s decision had little to do with same-sex marriage at all and everything to do with democracy and the rule of law. It is not of special importance to me what the law says about marriage, he writes, but it is of overwhelming importance “who it is that rules me.”
“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 said.
In his nine-page dissent, Scalia ripped into the majority opinion, calling it a “judicial Putsch” that poses a “threat to American democracy.” He added that a “system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The Court’s “naked judicial claim to legislative—indeed, super-legislative—power” bulldozed the right of the People to self-government, said Scalia, which represents the greatest threat to the American experiment in self-government.
In his scathing rebuke of the ruling, Scalia said that the majority had reached “an opinion lacking even a thin veneer of law.”
He noted that at the time the Constitution’s 14th Amendment was ratified in 1868, “every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so,” which makes it extraordinarily suspicious that the 2015 court could suddenly find differently.