Though I usually don't agree with Justice Scalia, I do agree with much of what he said in a speech at the Kennedy School:
"What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society ... by judges," Scalia said on Tuesday during an appearance at Harvard University's Kennedy School of Government.
In some cases -- and in response to a question from the audience, he acknowledged Brown vs. Board of Education was one -- there is a societal benefit when a court rules against prevailing popular opinion, but generally speaking it is fundamentally bad for democracy, he said.
While Scalia never mentioned the gay marriage issue specifically, the Massachusetts Supreme Judicial Court has come under fire nationally for overstepping its authority on the issue.
That court ruled last year that gay couples constitutionally could not be denied marriage licenses; the decision paved the way for the nation's first state-sanctioned same-sex marriages.
"I believe in liberal democracy, which is a democracy that worries about the tyranny of the majority, but it is the majority itself that must draw the lines," Scalia said.
As an example, he cited the women's suffrage movement, which he said resulted from the will of the people, not a court.
In general, I think this is right and I would hope that Scalia keeps these thoughts in mind when he looks at takings and commerce clause cases. I also think it's generally true on a variety of social issues. The general rule should be to let the majority decide how it will govern itself. The only exceptions I would make are those laid out by Justice Stone in Carolene Products and later by Prof. John Hart Ely--political rights like freedom of speec, assembly, press, etc. that are necessary for the majority to arrived at a free and informed decision, and restrictions on "discrete and insular minorities," groups that historically have been unable to get a fair hearing from the majority because of prejudice or rank inequality. For example, the Court was right in Brown v. Board to strike down segregation laws against the wishes of the majority of citizens in those states. Why? Because those laws placed a terrible burden on blacks, a burden that they had no possible way of removing through normal majoritarian political channels.
Similarly, that's why Scalia's example of women's suffrage is exactly the wrong one. Without the right to vote, women had very little ability address a terrible inequality. As a result, the Court should have struck down male-only suffrage laws in the 1870s.
I have a harder time with Roe v. Wade. Women have clearly suffered discrimination, but unlike blacks at the time of Brown, women in the 1970s were not locked out of the political process. Also, positions on abortion cut across gender lines. Furthermore, the evidence shows that in many states, abortion rights advocates were successful in their quest to liberalize abortion laws. Gerry Rosenberg's book, Hollow Hope is particularly good on this topic. He points out that despite Roe v. Wade, the the trendline of the number of legal abortions did not change significantly after 1973. This suggests that the current state of abortion rights wouldn't be all that different if the Court hadn't acted and the issue was left to work its way through the majoritarian political process.
On the matter of gay marriage, I think this case is more comparable to Brown v. Board. Despite recent advances, gays are still discrete and insular majorities, and thus in needing of the Court's protection when it comes to securing their rights.