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rant

Courts and legislatures

A recent NY Times op-ed quotes Justice Antonin Scalia as saying (in a speech summarized here) that "the protection of minorities should be the responsibility of legislatures, not courts."

Excuse me? I'm no Constitutional scholar, but that's ridiculous. Legislatures are explicitly elected by majorities, and indeed tend to over-represent majorities. Most of them are elected district-by-district, with one plurality vote-winner in each district becoming the sole legislative voice of that district. As a result, it's mathematically impossible[*] for a 45% minority to elect more than 45% of the legislature, but quite possible for a 55% majority to elect 100% of the legislature. A legislature is the last institution you should expect to protect minorities.

Protecting minorities is very much the responsibility of courts, which are appointed to "do what's right and legal, not necessarily what's popular"; that's why many (though not all) judgeships, including Scalia's own position on the Supreme Court, are lifetime appointments rather than elected positions.

I've always thought of Scalia as a very intelligent guy with whom I almost never agree. This statement, if he actually made it, calls into question the first half of that.

[*] ETA Correction: it's not mathematically impossible, just difficult. I assume for simplicity that all winners are chosen by a majority vote, and we have no 40-30-30 splits or things like that. And I assume that all districts have an equal number of voters. If your bloc (with N% of the electorate) controls the drawing of district lines, it can theoretically elect up to (2N-epsilon)% of the legislature by placing a bare majority of its voters into as many districts as possible, and none of its voters in the rest.

But realistically, whoever currently has a majority in the legislature will probably control the district-drawing process too, so they can hang onto their legislative majority indefinitely as long as their representation in the electorate doesn't fall TOO far below 50%. As witness the current Republican House of Representatives.

But back to the original point. It may be theoretically possible for a "large" minority (say, 45%) to be overrepresented, and even a majority, in a legislature, but it's difficult. And the smaller the minority is, the more likely it is to be underrepresented in the legislature. Since Scalia's original remarks were about LGBT, who are probably under 25% of the adult population, we can reasonably expect them to be underrepresented in any legislature, and cannot assume that any legislature will protect them.
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This statement, if he actually made it, calls into question the first half of that.

I think it more calls into question his morality, specifically his good faith, rather than his intellect. I don't think he doesn't know better. I think he doesn't want to admit it.
Yes, that's quite possible too.

It's not as though majoritarianism vs. "protecting minority rights" is an obscure question that nobody in legal philosophy has thought of before: we debated it, using those terms, in one of my undergraduate classes thirty years ago. It's probably one of the three most important concepts in legal philosophy (along with, say, false-positive vs. false-negative errors and moral-vs.-legal).

For a Supreme Court Justice to say protecting minorities is the job of legislatures, not courts, in an address to law students, is just bizarre. Is he actually trying to persuade the next generation of lawyers and judges that they don't need to worry about minority rights unless they run for legislative office (in which case they probably can't afford to worry about minority rights, lest they lose the election)?

Edited at 2015-12-13 02:15 pm (UTC)
I have a handy rule of thumb. When somebody says something contentious that's otherwise inexplicable, it's a good bet that the party they're attempting to convince is themselves.
I think I've just adopted your rule of thumb. That's the only explanation that makes any sense at all.
Scalia is a nasty, corrupt, prejudiced old man. He got on the court solely because he wasn't Robert Bork, and he's gotten worse and worse.