Althouse: Richard Posner (with Eric Segall) publishes a NYT op-ed titled "Justice Scalia’s Majoritarian Theocracy."

December 2, 2015

Richard Posner (with Eric Segall) publishes a NYT op-ed titled "Justice Scalia’s Majoritarian Theocracy."

That sounds inflammatory!

The short essay cites some cases in which Justice Scalia, by not recognizing claims of constitutional right, leaves some policy to be determined by the processes of democracy. Since the Americans who participate in our democracy often think through political issues in minds imbued with religion, the results of the majoritarian process could — if you want to stretch and be inflammatory — be called a theocracy.

To be fair, Posner and Segall only say that Justice Scalia's "political ideal verges on majoritarian theocracy."

It's the NYT that's responsible for the headline "Justice Scalia’s Majoritarian Theocracy."

39 comments:

Achilles said...: The government is jealous of the influence Christ has.; 12/2/15, 5:36 PM
Paddy O said...: So, there should be a religion test for voting?; 12/2/15, 5:36 PM
Sebastian said...: "To be fair" to people who couldn't care less about "fairness" (nor, in Posner's case, about the actual Constitution) is actually very unfair.; 12/2/15, 5:37 PM
Paddy O said...: Posner: "Who will rid me of this troublesome priests?"; 12/2/15, 5:38 PM
YoungHegelian said...: I used to think Posner was better than this.

For some time now, I've known I was wrong.; 12/2/15, 5:39 PM
Drago said...: Scalia remains on SC.

Jimbino hardest hit.; 12/2/15, 5:45 PM
n.n said...: So, mortals suffering from a god complex are now preferable to a post-mortem by an extra-universal God? Really?

The moral insanity of left-wing ideologues would suggest otherwise.

That said, judge a philosophy by the content of its principles, not the "color" of its philosopher.; 12/2/15, 5:56 PM
rcocean said...: Did Althouse link to the Posner intereview where he states he doesn't care about the text of the constitution, prior case law, or the wording of the law or statue under review?

I read it, and I found it refreshingly honest. Finally, a judge honest enough to state his rulings are based on nothing more than his personal politics and prejudices.

If only Grandma O'Connor and King Kennedy would've been as honest.; 12/2/15, 6:00 PM
MikeR said...: This sounds idiotic. He doesn't accept certain rights that Posner believes in and wants to leave it to democracy. Crazy thing to do.; 12/2/15, 6:05 PM
David Begley said...: I guess if a Supreme Court Justice disagrees with lower court judge Posner, he's just a nut. Reasonable judges can't disagree.; 12/2/15, 6:15 PM
Jupiter said...: "The logic of his position is that the Supreme Court should get out of the business of enforcing the Constitution altogether, for enforcing it overrides legislation, which is the product of elected officials, and hence of democracy."

So Posner is upset because Scalia ignores the clear language of Article VII, Section 2; "The right of two males or two females to marry one another shall be anathema in the land, unless or until a couple of appellate court justices can be found who approve of its exercise."

Yeah, I had thought that Posner was supposed to be a serious legal thinker. It appears he has become just another case.; 12/2/15, 6:15 PM
jr565 said...: Posner, the guy who just said the constitution isn't that important in determining what is or isn't legal. Have a heart attack posner.; 12/2/15, 6:26 PM
tim maguire said...: Sounds like Posner has lost hope in getting appointed to the Supreme Court by a Republican and has decided to throw in his lot with the Democrats. Bet that does't work any better.; 12/2/15, 6:33 PM
mccullough said...: Majority vote is always going to be influenced by some ideas and many of those ideas are going to be based upon religious beliefs.

Posner's view leads to the conclusion that the Rev. Martin Luther King holiday and city named after a saint are unconstitutional. This dude jumped the shark a long time ago.; 12/2/15, 6:59 PM
Static Ping said...: So is he angling for a writing gig at Salon after he retires from the bench?; 12/2/15, 6:59 PM
augustus said...: The current Majoritarian Kleptocracy is far more troubling than the bogeyman of theocracy.; 12/2/15, 7:02 PM
senor said...: FIt would be easier to take posner seriously if he hadnt just published an article stating that the reason he changed his ruling on gay marriage was because public opinion had changed. That's not subordinating the constitution to public opinion. No sir.; 12/2/15, 7:09 PM
mccullough said...: Scalia's views are well known. Posners view of the Constitution is that if something is not unconstitutional in 1997 it becomes unconstitutional 18 years later if a majority of citizens in an opinion poll favors something even if their position is not reflected in the majority of states' laws, much less the supermajority required to amend the constitution. Apparently if a majority changes their mind, as reflected in an opinion poll, to bad because it is a one way ticket. Except for the right to own a handgun. Posner doesn't like that right, and neither do many upperclass Ivy League lawyers. So that right Wil be rescinded when they get a majority on the Court.

In other words, Scalia's comments about a 9-headed Caesar made it p of an unrepresentative sample of Americans is correct. Let us s all be a law unto ourselves like Posner; 12/2/15, 7:11 PM
senor said...: It would be easier to take posner seriously if he hadnt just written an article stating that he changed his ruling on gay marriage because public opinion changed. Cant subordinate the constituion to popular opinion, no sir.; 12/2/15, 7:12 PM
djf said...: Let's talk about Richard Posner's technocratic/bureaucratic/juridical a-theocracy.; 12/2/15, 7:19 PM
Left Bank of the Charles said...: To be fair to the NYT, Judge Posner verges on responsibility for that headline too.

Justice Scalia's idea that atheism might have no Establishment Clause protection is intriguing. Atheism-inspired activism is a religion, and it would be fun to see its adherents have to admit as much to get their Constitutional protections. But what is Scalia's position on agnosticism under the Establishment Clause?

Scalia's idea that "state and local officials who are not actual parties to Supreme Court cases have no obligation to obey judicial rulings that those officials think lack a warrant in the text or original understanding of the Constitution" is not very practical, as Kim Davis found out. She was simply sued, and then she was party to a case and bound by the lower court decision in it.; 12/2/15, 7:54 PM
Michael K said...: The most important Justice on the Court right now is Thomas. He is younger and a firm original intent guy with firm views on the Constitution. That is why he is so hated by the left.; 12/2/15, 7:56 PM
Ann Althouse said...: "Did Althouse link to the Posner intereview where he states he doesn't care about the text of the constitution, prior case law, or the wording of the law or statue under review?"

I never got around to it. Saw it though.; 12/2/15, 8:30 PM
Henry said...: Since the Americans who participate in our democracy often think through political issues in minds imbued with religion

As opposed to whom?

Posner (and Segal) have a very cramped view of what constitutes religion.; 12/2/15, 9:18 PM
Bay Area Guy said...: True, you could say " Majoritarian Theocracy." It sounds rigid and formal, perhaps how detached Academics speak.

Or, you could say, "God-fearing Americans!" I prefer the latter. Sounds more exhilarating.

The God-fearing Americans - who defeated the Colonialists, who fought the Civil War to free the slaves, who stormed the beaches at Normandy to liberate Europe from the Nazis, and who toppled the nefarious Communist empire.

Yes, I will go with God-fearing Americans. Scalia 1, Posner 0; 12/2/15, 9:51 PM
Titus said...: Scalia...and Ginsburg!!! are "activist judges". And need to retire.; 12/2/15, 10:10 PM
Chuck said...: Scalia didn't "predict" in Lawrence that the Court would someday find a right to same sex marriage.

No; Scalia was TAUNTING Justice Kennedy, because Kennedy didn't really have the moral courage of his own legal conviction in that case. Kennedy tried to make a claim in his majority opinion that the Lawrence decision was based purely on people's right to liberty in something as private as sexual relations. That's what Kennedy claimed, and Scalia called him on it.

Essentially, Scalia was calling Kennedy a liar. Scalia was saying -- literally -- "don't believe it" when these judges try to tell you that theirs is just a simple, solid ruling about privacy.

Scalia was right, of course. I have never understood the liberals who snicker that it was Scalia's own "prediction" that came true in Obergefell. It was Scalia's pronouncement that it was all essentially dishonest judging (masquerading as legislation) that was proven true. To Justice Anthony Kennedy's eternal embarrassment.

Richard Posner, who once possessed a superb legal mind, has lost it.

One of the most offensive things about this small insult to my intelligence in the Times is the way in which Posner attempts to isolate Scalia. Every single member of the four-judge minority in Obergefell wrote an opinion; they were all just as vituperative as was Scalia's, and particularly so was Chief Justice Roberts' opinion. For the non-lawyers out there; they were pissed. They were REALLY pissed off.

In Posner's own opinion in the Wolf cases (Wisconsin and Indiana), Posner was blathering about how a large "majority" of states had already seen gay marriage legalized before those cases came to him on the Seventh Circuit. What a stupid comment. Circuit judges might actually care about "majorities" of other-jurisdiction law, if one were talking about democratic movements, and real majorities of voters and legislatures. No such "majority" ever existed in same-sex marriage law. The vast majority of states disallowed gay marriage, and routinely by laws enacted by large electoral majorities. Those laws were only upset by narrow majorities of federal judicial panels. And that situation further proved Scalia right; it had been part of Scalia's Lawrence dissent, and was quoted by Posner in his latest Times column. Scalia maintains that the judicial push for normalized universal rights for homosexuals was already a part of American legal culture. "Today's decision is the product of a court which is the product of a law profession culture..."

In every bar association in every state, and in every big law school, there are awards for special service to the LGTBQ community, achievement awards for the lawyers who challenged traditional marriage laws, special sections for practitioners in lesbian and gay civil rights laws. Big law firms, like big corporations, are doing special projects, special outreach efforts for gay rights. There are law profs getting tenure as special practitioners of the law of gay rights.

The law profession has comprehensively chosen sides in the culture war, and woe be unto lawyers who genuinely believe in traditional marriage and who harbor genuine personal beliefs in opposition to the public normalization of homosexuality.; 12/2/15, 10:13 PM
Gabriel said...: Didn't we just read how Posner says that constitutionality should be in part determined by the feelings of the majority on the issue?

I guess I missed the part where he said "except if it's Scalia".; 12/2/15, 11:43 PM
sdharms said...: Posner thinks the Constitution is outdated and really should be ignored. But I don't see him giving up his powers under Article III. The only thing that keeps the pitchforks from his door is that most of us believe the Constitution gives our elected officials legitimacy. If he doesn't believe it, he should act on that.; 12/3/15, 5:30 AM
lgv said...: Does it not seem a bit circular in logic.

What a 75% of all voters decided to modify the constitution and eliminate most existing rights and fully allow a tyranny of the majority. Then there would be a de facto Majoritarian Theocracy which cannot be changed by Posner and Scalia. This would actually be preferred to judges or the Supreme Court making up what is constitutionally protected based on their personal whims or unaccountable interpretations of the law.; 12/3/15, 6:14 AM
damikesc said...: Sounds like Posner has lost hope in getting appointed to the Supreme Court by a Republican and has decided to throw in his lot with the Democrats. Bet that does't work any better.

Anybody who votes to confirm a judge that has openly stated that polling trumps the Constitution in his jurisprudence should be impeached.; 12/3/15, 6:48 AM
Marty Keller said...: Proto-theocracy!; 12/3/15, 9:04 AM
Ann Althouse said...: Posner is far too old to be chosen for the Supreme Court, but I think he decided long ago that it was worth it to speak frankly and thus to be too interesting to get confirmed.; 12/3/15, 9:38 AM
Unknown said...: Chuck, 12/2/15, 10:13 PM
spot on; 12/3/15, 10:12 AM
Amadeus 48 said...: Posner is bored by his job, but he likes the power--he just wishes he had more. Add to that his frustration at having his huge intellect, but no Supreme Court seat and no Nobel prize (unlike all those other guys that he is smarter than), and you have a bitter man lashing out. He ought to retire from the bench and write essays for The New Yorker, The New Republic, and The New York Review of Books, and spare us all from the practical consequences of his late-in-life regrets. He was always a classical liberal, and now he has become a progressive in his dotage. Leave it all to experts, who know more than you do.; 12/3/15, 11:00 AM
n.n said...: The secular quasi-religionists are concerned that abortion rites will be proscribed by a morally sane majority.; 12/3/15, 11:25 AM
damikesc said...: Posner is far too old to be chosen for the Supreme Court, but I think he decided long ago that it was worth it to speak frankly and thus to be too interesting to get confirmed.

But his opinions don't seem to be all that interesting or, to be honest, terribly well thought-out.; 12/3/15, 12:08 PM
Anonymous said...: Where does that imbecile think the Constitution came from? Hint, it was from a far more "theocratic" majority than we have here today.

Oh, that's right, he thinks "the Constitution means whatever Richard Posner thinks it means." Yes, how stupid of me not to understand: a Posner dictatorship is FAR preferable to mere democracy.

If you're an f'ing lunatic. And if your ideas are so worthless that they can't win in an actual democracy, where people are allowed to decide for themselves.; 12/3/15, 3:32 PM
Chuck said...: To Unknown, who liked my comment on Posner...

I recently came across a wonderful quote from British political operative (former speechwriter for Margaret Thatcher, and unsuccessful Tory candidate for Parliament) John O'Sullivan, who is now an author, educator and policy analyst.

"O'Sullivan's First Law" goes as follows: "All organizations that are not actually right-wing will over time become left-wing."; 12/3/15, 7:52 PM