From Obergefell v. Hodges.
Scalia is not afraid to whack fellow judges. He calls them out:
“… rather than focusing on the People’s understanding of “liberty” at the time of ratification or even today — the majority focuses on four “principles and traditions” that, in the majority’s view, prohibit States from defining marriage as an institution consisting of one man and one woman.
This is a naked judicial claim to legislative — indeed, super-legislative — power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment”.
A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
The Supreme Court, through its nine justices, are being tasked to do social reform. Yet this is not the judiciary’s role, as the democratic machinery is run by citizens:
“Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. … 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 a constitutional 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.”
The judiciary ought not act so as to take away democratic rights – in a true democracy, it is people who decide on policies, decisions and law via elections, discussions, and lawmakers - not court decisions that bind one view over others:
“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.”