Monday, December 07, 2015

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.


Hashim said...

As to "majoritarian": Judge Posner has *openly admitted* that his change of view on whether courts should recognize a constitutional right to gay marriage was based on the change in public opinion. From his recent YLJ re-review of Eskridge: "a decision by the Supreme Court in 1997 establishing a right to homosexual marriage in all states would have been a mistake. A change in public opinion was required to make the judicial creation of such a right acceptable." And yet he's accusing Scalia of deferring to the tyranny of the majority in this area?!?

As to theocracy: I doubt anyone has ever before applied that term to a regime where the Govt is *forbidden* from *coercing compliance* with its preferred religious tenets. And drawing the line at coercion, in addition to being consistent with the proper understanding of an "establishment" of religion, avoids such absurdities as holding that "in god we trust" on coins is unconstitutional "theocracy." But perhaps judge posner would deem that permissible "ceremonial deism", which is totally different from "majoritarian theocracy," because...

Shag from Brookline said...

Is Hash with his closing "because ... " suggesting a coin toss ... or merely being flippant?

To what extent was Scalia in Heller relying upon a change in public opinion?

Joe said...

The Posner article cited can be accessed here:

The concern expressed by the two here is Scalia is in a certain troubling fashion selectively concerned with "the tyranny of the majority." Posner is not rejecting usage of majority views as a factor in proper judging.


I "doubt" this is the first time it has been suggested that officially recognizing Catholicism plus passing laws against birth control etc. based on its principles but letting Jews not go to mass (and other such blatantly religious acts while deeming birth control and other things that are basic matters of individual morality that millions decide on religious grounds to state discretion) as a matter of tolerance can be deemed a sort of "theocracy."

Again, one can disagree with this idea, but Scalia et. al. might not want to stop there. The very idea has to be seen as illegitimate or unreasonable, even to the degree "reasonable minds disagree." They can also appeal, selectively, to the framing generation, ignoring how Madison et. al. had a much stricter view on separation of church and state than they do. The tone at times being sanctimonious & suggesting one side is not simply wrong but illegitimate.

"Coercion" to me is a more logical way to express what "free exercise" means though the difference at some point is hazy -- in practice, once you officially recognize religion, you will in some fashion put pressure on others to confirm. The inability to differentiate between "ceremonial deism" and much more blatant state favoritism does not seem that hard -- slippery slopes can be cited all over the place, so if we ban obscenity perhaps there is just no reasonable ability to differentiate "Peyton Place" or some other book/film now seen as acceptable even by most moralists.

The game can be played all day, but lines repeatedly are found. For instance, Scalia himself noted he is concerned with sectarian usages -- "In Jesus We Trust" could be a problem for him. A lawn sign might be seen as merely presidential speech but if Congress mandated it, I think he very well might think a line was crossed. He joined an opinion by Justice Kennedy suggesting a permanent gigantic Latin cross on City Hall would go too far. Like obscenity not being a good line, yes, some might point out all those official recognitions of God is a problem too -- just ask a public official who is wary about admitting s/he is an atheist. Not too long ago, in various states you had to affirm a belief in God to be a notary. Most found it silly to think anything of this.

As to the general idea of the op-ed, Scalia et. al. are selectively concerned about "tyranny of the majority" and his selective concern for religious liberty is troubling. But, there are probably other non-religious examples; don't know if religion has some special place there for him, basically.

Hashim said...

Joe -- the "selective" aspect of the op-ed/post was distinctly secondary. The strong primary implication was that it was illegitimate to resolve the constitutional question of gay marriage based on the views of the religious majority. I wholeheartedly agree with that premise, as I'm quite sure does Justice Scalia. Sadly, Judge Posner does not, since the change in position of the majority was *dispositive* to the so-called constitutional analysis.

And the "selectivity" charge fails too. The post focuses on laws where the text and history allegedly "did not compel invalidation." Whether or not that's true, it's not inconsistent with Scalia's criticism of Obergefell, which is that the history *compelled upholding* the laws. Namely, at the time of the 14A, *every* state limited marriage to the traditional definition, and *no one* thought the 14A invalidated those laws. For an originalist, that's an easy case. And none of the examples the post/op-ed identify contradict that analysis -- they all deal with only modern laws where original understanding is at worst unclear. Other than Brown/Loving (which is debatable), I'm not aware of *any* situation where Justice Scalia has deemed unconstitutional a practice that was widespread and uncontroversial at the time of the relevant constitutional provision.

As for coercion, two points: (1) the fact that the Establishment Clause and the Free Exercise Clause are flip sides of the same coin (can't compel or forbid religious exercise) is analogous to the Speech Clause and the Press clause (can't abridge spoken or written word). The SCt has repeatedly rejected the argument that "the press" must have special protections because otherwise the press clause would add nothing to the speech clause. Totally reasonable to interpret the Establishment Clause the same way -- and, indeed, Scalia goes further than that, because he'd prohibit even non-coercive sectarian speech. (2) I'm not denying that lines can be drawn under a non-coercion test. What I'm suggesting is that there's no meaningful difference between "ceremonial deism" and "majoritarian theocracy": it's the allowance of religious precepts that are so widely held that the court is indifferent to the views of dissenting minorities.

Shag from Brookline said...

Does Hash with his point:

"(1) the fact that the Establishment Clause and the Free Exercise Clause are flip sides of the same coin (can't compel or forbid religious exercise) ..."

accept atheism/agnosticism (freedom from religion) or does his coin land on edge on this?

Ed Whelan said...

As I spell out on Bench Memos: (1) Posner and Segall fail to address any of the actual points that John McGinnis and I make; (2) they abandon the major claim they made in their op-ed while obscuring the fact that they are abandoning it, and (3) their diversionary attack on Scalia's Establishment Clause positions badly misreads those positions.

Joe said...

More on the debate with Whelan:

Joe said...


This is what Hashim said. What is the "gotcha" here? It notes that majority opinion is a factor in how Posner applies the Constitution. Posner is not criticizing Scalia for doing this. It is how (allegedly favoring certain religious groups) that is the problem. The two here also at one point note the "end of democracy" rhetoric was being applied selectively.

Posner argues the case against same sex marriage was never strong but "change in public opinion was required to make the judicial creation of such a right acceptable." He still supported other rights for gays and lesbians even below marriage. But, this does reflect his personal pragmatic views & a certain realistic analysis -- Brown v. Bd. realistically required a certain change in public opinion, including such things like desegregation of MLB and the army -- as did various other legal changes. Even there, law requires other things to develop too.

The selective claim is not based on any one case. Anyway, a vast majority of people in 1868 also didn't think interracial marriage was covered by the 14A (if social rights like that were even at issue) along with various other things Scalia et. al. think constitutionally compelled. John Marshall Harlan, the great dissenter in Plessy, accepted such things along in various cases as to race matters. A small minority had other views; in fact, free love etc. was not held by "nobody."

The USSC tends to blend the speech and press clauses together as freedom of expression; their refusal to separately give special privileges to the press arguably is problematic. Anyway, the connection of the two aspects of religious liberty is readily noted but doesn't change what I said. The way coercion isn't necessary for theocracy also was not refuted though again the two tests run into each other.

Finally, if "In God We Trust" etc. is all that is needed for "majoritarian theocracy," okay -- obscenity rules means we are a bunch of censors. The term usually has a bit more bite -- like saying you are a LIAR requires more than telling a person their ugly tie is nice. The op-ed claims Scalia is doing it much more blatantly.

Hashim said...

A few reactions Joe:

1. This was the central accusation in the op-ed: "The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical." But Justice Scalia obviously never said that the Constitution can't override religious beliefs, as he plainly agrees it does in numerous contexts (e.g., the 1A protects blasphemy). And the hypocrisy is that the only person who has argued that religious beliefs should ever trump the Constitution *is Judge Posner,* since he's the only one interpreting the Constitution based on public-opinion polls.

2. "The selective claim is not based on any one case" -- actually, it's not based on *any* case, since, as you don't dispute, *none* of the examples identified in the post involved practices like traditional marriage that were widespread and uncontroversial at the time of the constitutional enactment. As I predicted, you've gone to Loving and Brown, which is the only arguable exception. Even assuming arguendo that those cases are inconsistent with originalism, that at most shows that Scalia's a faint-hearted originalist when it comes to canonical race cases. It hardly shows that he's "selectively" favoring theocracy. He treats *every* widespread and uncontroversial practice at the time of the Founding as constitutional, with the *arguable* exception of certain types of invidious racial discrimination.

Joe said...

1. The quotation is in response to one included in the op-ed in which the religious beliefs of the population was cited by Scalia.

Taking everything as a whole, including this very blog entry (written by the person who co-wrote the op-ed) the concern is not that Scalia NEVER supports overriding popular religious beliefs. It is that his test is too weak in that respect. I still don't see the gotcha, putting aside he is not "the only one" who uses public opinion as a factor in judging.

2. The "widespread and uncontroversial" test doesn't work in various cases and commonly cited refutations are just supplied for simplicity.

His current application of non-religious matters include cases striking down "widespread and uncontroversial practices" such as regulation of lobbyists. In fact, his non-sectarian test would very well have been rejected given wide acceptance of blatantly Protestant sectarian policies. His "faint heartedness" goes beyond "certain types of invidious racial discrimination."

I ended my original comment by noting that I personally wouldn't single out the religion angle but since you cover a lot more ground, so did I.

Shag from Brookline said...

Speaking of Heller (as I was), I note that the Court's decision not to grant Cert on the Friedman v. City of Highland Park 7th Cir. decision involving the banning of assault weapons, with the objections of Thomas and Scalia noted, Judge Posner was not on the 7th Cir. panel. The Court has not granted Cert on a 2nd A appeal since McDonald in 2010. Perhaps polling, public opinion, etc, regarding recent events were on the minds of the other 7 Justices.

D. Ghirlandaio said...

Scalia's decisions are based Catholic moralism; he's only a hypocrite. Posner's opinions from the market are pure subjectivism. The law is what he says it is; morality be damned. And he's son's a fascist.

Aaron Jordan said...

I think Posner and Eric do walk back some of their more aggressive language, and should admit they are doing so. I think they also should have focused more on Scalia's inconsistencies rather than his majoritarianism from the beginning. Especially because they both more or less are majoritarians.

That said their main points are and have been mainly right.


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Adriana eli said...

I think and Mark McCorkle and Eric NEED to EXAMINE who THOUGHT MORE DEEPLY ABOUT THIS

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paul said...

Justices and Judges have no business publicly communicating about the law, their colleagues, or anyone else, whether through a law review article, a commencement address, a letter to the editor, or what have you. They are, however, perfectly free to comment about anything they desire as long as it is published posthumously.

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