Bench Memos

Law & the Courts

Feeble Posner/Segall Response

Judge Richard Posner and law professor Eric Segall have purported to offer a response to my critique and law professor John McGinnis’s critique of their New York Times op-ed (titled “Justice Scalia’s Majoritarian Theocracy”). Their response is a feeble diversion that fails to engage meaningfully with any of our specific points. Further, they abandon their major claim while trying to hide the fact that they are doing so.

Some observations:

1. In my critique, I showed how Posner and Segall badly misrepresented five of Justice Scalia’s positions. Posner and Segall don’t present, much less address, any of my five points. No one who reads their response would have any idea of the misrepresentations of theirs that I detailed.

Ditto regarding McGinnis. Indeed, Posner and Segall don’t even fairly convey the breadth and force of McGinnis’s objection. Whereas McGinnis stated that he is “baffled as to why he [Posner] is stooping to distorting the positions of jurisprudential opponents,” Posner and Segall say merely that McGinnis “wrote … that we distorted the position of a ‘jurisprudential opponent.’”

Posner and Segall somehow think it meaningful to state that they “quoted Justice Scalia either directly from his opinions or from reliable accounts of his speeches.” But McGinnis and I never alleged that they misquoted him. Our objection instead was to the tendentious and, in some instances, absurd extrapolations they made from his quotes. In other words, we argued that the positions that they imputed to Scalia aren’t fairly supported by the quotes they use and are belied by Scalia’s broader record. They offer no response to our actual arguments.

(Posner and Segall even try to dismiss our extensive critiques as “social media commentary”—yeah, just a few tweets—that reflect only “[a] fraction” of unhappy dissenters from the broader acclaim they would like their hapless reader to imagine their op-ed has received. For what it’s worth, a reader who has pointed out to me various liberals who have tweeted their dissatisfaction with the Posner/Segall op-ed.)

2. Posner and Segall’s primary tactic is to launch a diversionary attack on Scalia’s Establishment Clause positions. As I explain in point 3, their diversionary attack badly misrepresents Scalia’s positions. But what matters more for present purposes is that they are effectively abandoning the major claim they made in their op-ed.

That claim, as I spelled out in point 2 of my critique, was that a statement by Scalia supposedly “suggest[ed]” that Scalia holds the position that “the Constitution cannot override the religious beliefs of many American citizens.” Based on that supposed suggestion, they contended in their op-ed that Scalia “seems to want to turn the Constitution upside down when it comes to government and religion; his political ideal verges on majoritarian theocracy.” (Emphasis added.)

The Posner/Segall charge is baseless and absurd. If Scalia believed that “the Constitution cannot override the religious beliefs of many American citizens,” that would mean, for example, that he would think that a religious majority could enact laws that bar gays from exercising First Amendment speech rights, or Muslims from building mosques, or anyone from getting just compensation for takings.

Posner and Segall try to rewrite their claim. They now contend that “it seems that Justice Scalia’s interpretation of the establishment clause would allow the majority to press any and all theocratic measures other than those already prohibited by other constitutional provisions.” (Emphasis added.) So much for their previous insinuation that Scalia believes broadly that “the Constitution cannot override the religious beliefs of many American citizens.”

So when Posner and Segall assert that “yes, we think it is fair to say that Justice Scalia believes in ‘majoritarian theocracy,’” they are obscuring the fact that they are dramatically downsizing what they mean by that charge.

3. Even then, Posner and Segall badly botch Scalia’s Establishment Clause positions. They contend that “[i]t seems that the only majoritarian measures that Justice Scalia would vote to invalidate as violations of the establishment clause are those that either coerce people to engage in religion or punish them for doing so.” To support this claim, they allege that in his 1992 dissent in Lee v. Weisman (not Wiseman, as they write) “Scalia said he would enforce the establishment clause only against governmental ‘acts backed by threat of penalty.’” (Emphasis added.)

Believe it or not, Posner and Segall somehow overlook this statement of Scalia’s from his dissent:

I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations, ruled out of order government-sponsored endorsement of religion … where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). [Citation omitted.]

Among the justices who joined Scalia’s dissent was notorious theocrat Byron White.

Further, in his dissent in a Ten Commandments case, McCreary County v. ACLU (2005), Scalia embraced as a “valid principle” that “the government cannot favor one religion over another … where public aid or assistance to religions is concerned.” There’s plenty more to show that Posner and Segall are badly misrepresenting Scalia’s Establishment Clause positions. But I won’t be further diverted here by their diversion.

Yes, yet another contemptible performance by Posner.


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