On America’s Newsroom Friday, Fox News’ senior judicial analyst, Judge Andrew Napolitano, offered a pointed analysis of Justice Antonin Scalia’s dissent on the same-sex marriage Supreme Court ruling.
The Supreme Court ruled 5-4 in Obergefell v. Hodges Friday to legalize same-sex marriage in all 50 states. “The court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them,” Justice Anthony Kennedy wrote in the majority opinion for the court.
Napolitano told Fox News correspondent Leland Vittert shortly after the ruling that “Five unelected black robed judges have taken over the government, have rewritten an institution that’s 4,000 years old, an institution that relies on popular consensus and ancient tradition and there is no authority whatsoever in the Constitution for them to do so.”
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The former Bergen County, N.J., superior court judge read some of Scalia’s dissent on air:
Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.” With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.
The veteran justice argued the majority’s decision relates to the court’s disconnection with the rest of the country. Scalia noted that out of the nine justices sitting on the Supreme Court, eight studied at Harvard or Yale Law School, and four of the nine are New York City natives (Scalia, born in Trenton, N.J., grew up in Queens and went to high school in Manhattan). “Only one hails from the vast expanse in-between,” Scalia wrote. “Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).”
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Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified aconstitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.
Scalia, who himself is Catholic and has nine children, including one son who is a priest, called the majority opinion “egotistic.”
“It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so,” Scalia wrote. “Of course the opinion’s showy profundities are often profoundly incoherent.”
“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)
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