Richard Posner decries the theocratic views of Justice Scalia

December 4, 2015 • 8:15 am

My colleague Richard Posner teaches at our law school, is a judge on the U.S. Court of Appeals of the Seventh Circuit, has repeatedly been mentioned as a candidate for the Supreme Court (he says he’s too old now), and is the most cited American legal scholar of the twentieth century. He’s also written 40 books, so is clearly an overachiever. Posner is generally characterized as a conservative, but that’s not an accurate label since he favors the legalization of both marijuana and gay marriage.

Posner’s penchant for leftish views was on show yesterday with an op-ed in the New York Times co-written with Eric Segall, a law professor at Georgia State. The piece, “Justice Scalia’s majoritarian theocracy“, decries the increasingly theocratic and loopy views of Supreme Court Justice Antonin Scalia. I give a few excerpts below (my emphasis). I hadn’t realized how anti-gay Scalia really was, though of course he’s a devout Catholic.

The Supreme Court has decided four major cases furthering gay rights. Justice Antonin Scalia has written a bitter dissent from each.

In Lawrence v. Texas, for example, where the court invalidated Texas’ ban on homosexual relations between consenting adults, Justice Scalia complained that: “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

He added: “Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as ‘discrimination’ which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously ‘mainstream.’”

. . . In a recent speech to law students at Georgetown, he argued that there is no principled basis for distinguishing child molesters from homosexuals, since both are minorities and, further, that the protection of minorities should be the responsibility of legislatures, not courts. After all, he remarked sarcastically, child abusers are also a “deserving minority,” and added, “nobody loves them.”

. . . Obergefell [Obergefell et al. v. Hodges et al.: the gay-marriage case]  seems to obsess him. In a speech at Rhodes College in Memphis, he said that the decision represents the “furthest imaginable extension of the Supreme Court doing whatever it wants,” and that “saying that the Constitution requires that practice” — same-sex marriage — “which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.” The decision, he said, “had nothing to do with the law.”

The suggestion that the Constitution cannot override the religious beliefs of many American citizens is radical. It would imply, contrary to the provision that forbids religious tests for public office, that religious majorities are special wards of the Constitution. Justice Scalia seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.

The notion that our laws should somehow cater to “the religious beliefs of many of our citizens” is bizarre and scary—and, as Posner and Segall note, clearly violates the First Amendment to the Constitution, intended to protect minority faiths and nonbelief. And the comparison between gays and child molesters is reprehensible. Scalia’s statements bespeak someone so extreme, so marinated in faith, that he’s actually unstable—no longer able to judge judiciously. If judges could be fired, I’d say Scalia should get the pink slip immediately.

As an aside, Posner’s Wikipedia page describes his devotion to his Maine Coon cat, Pixie: I’ve previously featured on this site a photo of Pixie provided by judge Posner. I’ll show Pixie again, but go to the original post to see Posner’s notes on his beloved felid.

Two years ago The Daily Beast featured an interview with Posner, mainly about the way he writes. But among the Q&A I found this:

Tell us something about yourself that is largely unknown and perhaps surprising.

Well, I’m a very big cat person. Used to like dogs, then I switched. I have a big crush on my current cat. I like animals generally. I’m very soft about animals. My cat is a Maine Coon named Pixie. What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats. She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house. She’s very social. She appears to recognize members of our families, kids and grandchildren. She’s a real sweetie. It’s one of the reasons I work at home a lot now. The nature of my work is such that I don’t really have to be in the office unless I’m hearing cases. I spend probably at least half the time at home working. Everything I need, I have with me or have electronic access to. One reason is that the cat wants us at home.

Check out that last sentence. What devotion (of the man, not the cat)!

Screen Shot 2015-12-03 at 2.25.27 PM
Pixie!

 Here’s Judge Posner with Pixie’s predecessor, Dinah (see the interview at Concurring Opinions):

Richard-Posner-and-his-cat

69 thoughts on “Richard Posner decries the theocratic views of Justice Scalia”

  1. In a NY Magazine article Scalia said the reason we don’t see evidence of the devil as much as in the OT times is because “he got wilier.” Frightening dude.

  2. I am confident that future scholars will view Scalia in the same vein as they do Justice Tenney who I believe authored and/or was the Chief Justice of the Dred Scott decision.

    1. The judge was Roger B. Taney. He was Chief Justice at the time of Dred Scott vs. Sandford (1857).

    2. And for those of us to whom American legal history is of academic interest only, the significance of the Judge Dredd (2000AD spelling) vs Mr Scott case is ???
      Another Q (also only of academic interest) is that I thought that marriage in America is a civil matter, regardless of religion. Reason I ask is that an American contact got married, in a Humanist or something ceremony, but recently mentioned that they’d only now , a month or so later, had it made official. I took that to mean the civil paperwork came through at last. Puzzled.

  3. Talk about someone that #1. Needs to retire.
    #2. Needs to spend a lot of time with a psychiatrist.
    #3. Needs a full month of nothing but Dawkins, Denett, Hitchens, and Harris.

  4. I think the “conservative = anti-gay” position is not universal.

    As Ireland showed recently, a majority Catholic country was largely pro same-sex marriage. This was also supported by both major Irish conservative parties.

    Then again, I think several conservative parties in Europe are a little to the left of the US Democratic party.

    1. I think our centre-right government has far more in common with the Democrats than the Republicans. Our biggest centre-left party makes Bernie Sanders look conservative.

  5. Richard Posner is a guy who has his priorities right.

    Scalia no longer able to judge? When, if ever, was he…

    1. Scalia no longer able to judge? When, if ever, was he …

      Since you ask, Employment Division v Smith (1990) was a pretty good ruling written by Scalia.

      The view of religious freedom promoted in that ruling upset a lot of Christians, so much so that they passed the mis-named “Religious Freedom Restoration Act” to try to overturn it.

  6. “saying that the Constitution requires that practice” — same-sex marriage — “which is contrary to the religious beliefs of many of our citizens, I don’t know how you can get more extreme than that.”

    Well marriage is a somewhat private affair, so I would say the Court gets more extreme than that whenever it says the Constitution requires some public practice which is contrary to the religious beliefs of many of our citizens. Like, for example, when the courts overruled local (pre-Constitution) laws forbidding Catholics from holding elected office. Requiring protestant-majority states and districts to allow Catholics to hold judgeships, against the will of the majority, was more extreme.

    Moreover I don’t think this example is really limited to the late 18th and early 19th century. The US is 46% Protestant and 20% Catholic today. Protestants are the largest plurality in the country. If Scalia thinks that the evangelical protestants would limit their modern theocratic desires to stripping away the rights of non-Christians, IMO he’s fooling himself.

    2. Besides, does the Constitution “require” same-sex marriage? No. It says it should be an option. It doesn’t “require” any sort of marriage. Using a word like that is just another indicator of how he obsesses on the subject.

      Even as a Christian teenager in the 70s, I never understood why people were so obsessed about what consenting adults did in the privacy of their bedrooms. I also reasoned that since all love was a gift from God, it was no different for same-sex couples.

      Scalia’s god clearly has a different opinion than the one I used to believe in. We choose our religion, or lack thereof, but not our sexuality.

    3. ” The US is 46% Protestant and 20% Catholic today.”

      Yes, but that’s lumping all the Protestant cults denominations under one heading. Those groups are frequently at odds with one another, and, last I checked, the largest single Protestant cult denomination is the Southern Baptist, at 15.5 million, less than a fourth the number of Catholics at 66.4 million.

      Granted that covers a large spectrum of individual piety (e.g., cafeteria Catholics vs. Opus Dei), but they’re united under a single umbrella with an overwhelming sense of identity and a very visible leader. Few people outside a particular cult denomination can name its leaders, but you’d have to go a long way to find someone who doesn’t know who the pope is.

  7. Scalia would have been extremely happy in late 1930s Germany. Thomas and Alito are not far behind.

    1. There are RATS in SCOTUS. They are:

      Roberts
      Alito
      Thomas
      Scalia

      When you have a problem with rats, it’s time to call Orkin.

  8. The 2016 presidential election is first and foremost about the Supreme Court, and the primary reason I have been taking my high school-aged daughter to visit Canadian universities.

    1. It is both shameful and disturbing that there are those on the far left who do not seem to grasp that the new president will pick several Supreme Court justices, since many of them are rather old. They seem to think that Hillary Clinton is no better than the likely Republican candidate, whomever that lunatic may be. Salon has published several articles articulating this delusional view. As much as one may have reservations about Hillary, there can be no doubt that she would be better than any Republican, particularly in making Supreme Court appointments. These purists have the same mindset as those on the far right. And as a liberal, I hold these people in as much contempt as those on the far right.

        1. I agree too. Even though it’s not my country I worry every time I hear a liberal say they could never vote for Hillary. Even the “act” of not voting is effectively a vote for the Republican nominee.

          USians tend to vote for president on economic grounds (like everyone the world over), but in your style of democracy, the president has little effect on the economy. They are vital when it comes to SCOTUS and other appointments and foreign affairs though, and for those it’s, imo, vital a Democrat is elected.

      2. Yeah, I just looked up Scalia and didn’t realize that he’s 79. If Hillary gets elected for two terms, he’d be 88 when she was done, and it’s unlikely he’d last out her tenure. Thomas is 67, Roberts 60, and Alito 65. Those guys could outstay her. On the other hand, if a Republican is elected (G*d help us), Ginsburg is 82, Breyer 77, and swing voter Kennedy is 79.

        1. In comparison, Posner is 76. Which sadly means he’s right in saying he’s too old to nominate. He’s the same age now as the SCOTUS members we expect to retire in the next President’s term.

  9. Judge Posner is a John Stuart Mill liberal, which is meant as a compliment. It is a loss to the nation he was never appointed to SCOTUS.

    Scalia is just plain nuts.

  10. The article in the Times proves the crybaby methods of Scalia and nearly the entire republican party. As soon as the decision goes against their will (or religion) they attack it and the system itself. It is pure hypocrisy.

    He claims democracy no longer exist because he and the other 8 judges are un-elected. He also apparently favors Jefferson’s ideas on nullification even though this was settled 200 years ago.

    He did not just go insane, he has been insane since he put all his belief in the Pope. The law is just a secondary hobby.

  11. “NOT Obviously mainstream.” This is false. Just walk out into America. The majority view is orthogonal to Scalia.

    And Scalia, who do you think gays are? You write as if they are a sub-human species. You are despicable. And not the minion type.

      2. Hey! I (mostly) like my minions, and try to treat the well. Should I get a copy of the Despicable movie (?s) and Expenses it as “man management training material”?

  12. Scalia is widely represented to be “brilliant”, but perhaps my knowledge of legal reasoning isn’t sufficient to recognize it in his writing. His thought processes seem rather….self indulgent.

    2. If whatever he’s passing judgement on doesn’t have any effect on his interpretation of his god’s law, then he is brilliant. However, the fact that his logic and reasoning can be hijacked by his religious beliefs means he is prepared to put his faith ahead of the Constitution. That makes him unfit imo, like it would any presidential candidate who said they would do the same (and there are several in the current crop who say they would).

  14. I am still waiting for evidence of the high intelligence that so many, even among his critcs, attribute to Scalia. I’ve never seen it. One thing there is fairly solid evidence for is that he is ethically challenged. He is a walking, talking travesty of justice.

    1. Politics, at its worst. It didn’t matter a wit to the people who put him on the SC whether he had any constitutional sense. Hell, he might even have excellent constitutional sense. The problem might be something more like he is a lying, hypocritical bag of shit.

      1. According to Wikipedia, Scalia was confirmed by the Senate more or less by default. 1) They had just been through a long struggle trying to keep Rehnquist, a republican party hack, out off the court. They were tired. 2) Scalia was the first Italian-American to be confirmed. The Italian/catholic vote was at stake. They let him through on his sense of humor, and because he had his wife and 9 children sitting behind him during the hearings.

  16. “If judges could be fired, I’d say Scalia should get the pink slip immediately.”

    If judges could be fired, he’d probably keep his wacko views to himself. His decisions would seem bizarre, but hard to prosecute. It would be interesting to go back to his senate testimony to see if there were warning signs back then. But he was confirmed easily with no opposition from Democrats. Joe Biden was on the committee and later said he regretted not opposing him then. We’ve got learn how to nip this in the bud.

  17. According to recent polling numbers on U. S. citizens’ approval of gay marriage (Pew, 2015: 55 yes; 39 no), the national majority is clearly in favor. Scalia must know this and surely would not countenance majoritarian rule here. Does he mean some sort of local, state or regional ‘majorities’ against gay marriage? If so, isn’t he making the old and discredited argument for the lesser government entity’s nullification of the greater’s will? And, since that ‘greater will’ includes the Constitution and its guarantees of equal rights, wouldn’t it follow then that it is he, Scalia, a SCOTUS judge, who is trying to destroy the Constitution and betray the United States?

    We’d be back to the fight on nullification in South Carolina (what perennial mischief that wretched state gets up to!)in 1832 and secession 1861, through the years of Jim Crow and opposition to integration and African-American civil rights, etc., right down to the day before yesterday.

    In the ensuing anarchy, Scalia would no doubt take smug comfort from the ‘real presence’ as he swallowed the host.

    2. This is a minor point, but South Carolina actually seceded on December 20, 1860, the first state to do so. The other states of the Confederacy seceded in 1861.

    3. …the national majority is clearly in favor [of SSM]. Scalia must know this and surely would not countenance majoritarian rule here. Does he mean some sort of local, state or egional ‘majorities’ against gay marriage?

      He means whatever is most supportive of his partisan political views at the time. When he’s in the majority, their right to legislate their views must be protected. When he’s in the minority, the Constitution trumps majority rule. The ‘pure partisan’ hypothesis adequately explains his behavior; we have no need of any more complicated hypothesis.

      1. I think any analysis of Scalia’s judicial game theory would be inadequate without mentioning what’s trump: God. All rights and just laws come from God. If you can slap down the God card, you automatically take the trick.

        So do it quickly and be the first.

    5. So this Scalia person would be contemplating a vacation in autumn to Dobrzhkyn (mis-spleelt foreshore)?
      To practice cherry picking. Kaboom-tish I’ll be here all week.

  18. I don’t understand one thing. All my cats have been affectionate. True, they are more affectionate when they are hungry, but they are affectionate. And, like Judge Posner’s, they are both sweeties. 🙂

    1. Cats vary. I’ve had cats which could take me or leave me, only looking up at my return if I’d been gone for more than 4 days. I’m fine with that, preferring them to the opposite extreme of cats with a dog-like dogged devotion.

      Actually, thinking about it, the aloof-end spectrum cats I owned are not at the extreme end of that spectrum. The most UNaffectionate cats are those who consistently prefer to come out from under the couch only when you are out of the room. I’m NOT fine with that. Pointless pet, imo.

      1. My cat, Evil, about whom I’ve written some here, was the most aggressively affectionate cat anyone ever met. Or so says the people who met him.

        He died last Friday. Brain tumor.

        I’m . . . distraught.

        4. Oh, sad. These critters really worm their way into your heart. Better than people, some say.

        6. I’m late reading this post so wasn’t going to comment till I read yours, Marta. I just have to tell you how sorry I am to hear that! I always so enjoyed your stories about Evil. My heart goes out to you.

  19. Alan Dershowitz has often taken Scalia to task in various columns, but I suspect Posner may reach some folks that AD does not.

    A Google search on “anti-anti” produces the phrases “anti-anti-art” (a school of painting),
    “anti-anti-essentialism” (a concept in black studies) and anthropologist Clifford Geertz’s essay “anti-anti-relativism” (which he opposes) and “anti-antidote” which will re-establish the effects of poisoning and is used is some online role-playing game. That’s in just the first 10 hits.
    But then you get the right wing’s “anti-anti-bullying” (a term not coined by them) protesting school anti-bullying programs.

  20. I think “conservative” has always been a bit of a misnomer for Posner. He was more of a libertarian or free-market type. Used to take an economics approach to the law, which, frankly, isn’t appropriate. I suspect, too, that years of toiling in the same neck of the woods as conservatives has made him realize just how unjust most of them are. That said, he has always been a brilliant writer, and always worth reading. And cats are just the icing on the cake.

    The man is a genius. And I’ve liked his approach to the law and justice much more now than before. He has a humanity that is sorely needed. And he doesn’t take himself too seriously. The Supreme Court could use him, and should have had him a long time ago. I think presidents from both parties feared him – he’s no one’s “man”.

  21. Richard Posner does agree with Scalia on one thing: the Second Amendment. It was Posner’s Seventh Circuit ruling in Moore v. Madigan that made the concealed carry of a handgun legal in Illinois the last state to prohibit it. Judge Posner, writing for the majority, notes that while the Heller and McDonald decisions did say that the need for self-defense is most acute inside the home, that doesn’t mean it is not also acute outside the home. “Confrontations are not limited to the home”.
    https://en.wikipedia.org/wiki/Moore_v._Madigan

  22. As for Scalia, his intellectual dishonesty in Heller was more than anyone should have to bear. He is a horrifying jurist in so many ways. He determines the result he wants, then throws whatever bullshit it takes to get there. He has no respect for the rights of minorities. His only saving grace, which isn’t nearly enough, is his practice of coming down hard for the rights of the accused. But his theocracy cancels even that out.

  23. “What’s unusual about her, besides being beautiful and intelligent, but she’s affectionate. Very unusual in cats.”

    I have to disagree with his honor. Maine Coons have a reputation for being affectionate, good-natured, sweet-tempered and downright clingy.

    Isa, my older cat, is only half Maine Coon, so she’s not as large or as bushy as the purebreds, but when it comes to being affectionate, she’s more than true to form. She sits behind me while I’m at my computer, so I can’t lean back in my chair. She frequently intrudes between me and the keyboard so that I have to reach around her to type. She follows me around the apartment (sometimes this gets so annoying that I snarl at her, “If I had wanted something to follow me around I would have gotten a puppy!”)

    But her truest measure of affection comes at bedtime. I like to read in bed, and with Isa around, I have to read between the ears. When it comes time to set the book aside, then it’s cuddle time. She gets next to me, with full-body contact, and she wants my arms around her. If I turn over in my sleep (I’m a side sleeper), she gets up, walks around me and curls up on the side that I’m facing so that no matter how restless my sleep is, I wake up with a cat in my face and hair in my mouth.

    The biggest downside is the hairballs. Fortunately, she’s usually good enough to deliver them on a bare floor rather than a carpeted area. My worst nightmare is being woken up to the sound of a cat urping, knowing that there’s a big, fat, slimy hairball just waiting in the dark for my bare feet when I get up to use the bathroom at night (this happened two nights ago).

    Isa is far and away the sweetest, most affectionate cat I’ve ever had – she’s number six – and if I could somehow transform her from F. catus to H. sapiens I’d marry her (were she human, she’d be just about my age).

  24. Scalia is a disgrace to the bench and to America. Will the destructive legacies of Reagan ever go away?

  25. Dear Mr. Scalia:

    I do not want persons who openly engage in gun-toting activities as partners in my business, as scoutmasters for my children, as teachers in my children’s schools, or as boarders in my home. I view this as protecting myself and my family from a lifestyle that I believe to be immoral and destructive.

    I eagerly await your reasoned opinion and concomitant action with respect to this concern.

    Best Wishes,

    Mark Joseph

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