Overthrow the Judicial Dictatorship
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Commentators have missed the real significance of Justice Antonin Scalia’s dissent in the gay marriage case. He calls the decision a judicial “Putsch,” an attempt to overthrow a form of government—ours. His dissent, joined by Justice Clarence Thomas, was written “to call attention to this Court’s threat to American democracy.”
His comment about the Court using the kind of reasoning we find in a fortune cookie is a funny line. But there is much of the Scalia dissent that is not funny and which serves as a warning to the American people about what the Court has done to us.
Scalia understands the power and meaning of words and he chose the word “putsch” for a specific purpose. One definition of the term means “a secretly plotted and suddenly executed attempt to overthrow a government…” Another definition is “a plotted revolt or attempt to overthrow a government, especially one that depends upon suddenness and speed.”
Hence, Scalia is saying this was not only a blatant power grab and the creation of a “right” that does not exist, but a decision that depends on public ignorance about what is really taking place. It is our system of checks and balances and self-rule that has been undermined, he says.
In that sense, he is warning us that we need to understand the real significance of this decision, and go beyond all the commentators talking about “marriage equality” and “equal rights” for homosexuals. In effect, he is saying that the decision is really not about gay rights, but about the future of our constitutional republic, and the ability of the people to govern themselves rather than be governed by an elite panel making up laws and rights as they go.
Scalia’s dissent cannot be understood by listening to summaries made by commentators who probably didn’t read it. Although I may be accused of exaggerating the import of his dissent, my conclusion is that he is calling for nothing less than the American people to understand that a judicial dictatorship has emerged in this country and that its power must be addressed, checked, and overruled.
The implication of his dissent is that we, the American people, have to neutralize this panel, perhaps by removing the offenders from the court, and put in place a group of thinkers who are answerable to the Constitution and the people whose rights the Court is supposed to protect.
He says the majority on the court undermined the main principle of the American Revolution—“the freedom to govern themselves”—by sabotaging the right of the people to decide these matters. The Court destroyed the definition of marriage as one man and one woman “in an opinion lacking even a thin veneer of law.” In other words, the Court acted unlawfully and unconstitutionally.
Scalia called the decision “a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.”
Justice Scalia goes on, however, to attempt to explain why this is happening. He basically says, in so many words, that the majority of the Court is un-American, completely out of touch with American traditions and the views of ordinary Americans. He rips the Federal Judiciary as “hardly a cross-section of America,” people from elite law schools, with not a single person from middle-America, and not a single evangelical Christian or even a Protestant of any denomination. He calls the Court, on which he serves, a “highly unrepresentative panel of nine,” that has engaged in “social transformation” of the United States.
More than that, after examining the elite views and backgrounds of the “notorious nine,” he declares that while the American Revolution was a rejection of “taxation without representation,” we have in the gay marriage case, “social transformation without representation.”
One cannot help but think that Scalia wants readers to recall Obama’s promise of the “fundamental transformation” of America, except that in this case Obama has been assisted by five judges who did not represent, or even care about, the views of America as a whole.
