SCALIA'S GOOD SENSE
NEW YORK POST
Editorial
March 20, 2006
Long known as the most quotable of the nine justices on the Supreme Court, Antonin Scalia turns out to be just as refreshing off the bench.
Speaking last week to a dinner of students and faculty at the New England School of Law, Scalia weighed in on the subject of judicial activism - especially on issues of societal values.
And some of the things he said about the collective wisdom of the nation's judges are surely things you don't hear every day from jurists.
"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," said Scalia. Today's judges, he said, are no more qualified than "Joe Sixpack" to decide the kind of moral questions that have roiled political debate for decades.
Which is why, he rightly noted, the proper entity to resolve such issues isn't the courts, but state legislatures - which (quite appropriately) better reflect the popular will.
Case in point: The battle in the early 20th century to give women the vote was won not in the Supreme Court but via a constitutional amendment, adopted by a two-thirds vote in both houses of Congress and approved by two-thirds of the state legislatures.
And though it reflected a fundamental change in the nation's laws, that reform was nowhere near as radical a redefinition of society's long-held values as, say, same-sex marriage.
Decisions about such core social cornerstones, Scalia said, should be made by the elected voices of the people - not by a panel of robed justices, who have no inherent qualification to render judgment on issues of morality.
Yet "judicial hegemony," warns Scalia, "has replaced the public's right to decide important moral questions."
The good news is that, increasingly, other courts - even those with a liberal orientation - are beginning to accept Scalia's argument. Last month, a five-judge panel of the Appellate Division of New York's Supreme Court unanimously rejected a bid to overturn the state's marriage laws, saying any such change must come from the Legislature.
The problem is, some interests are still fighting hard to keep the federal bench politicized - witness the bitterly partisan battle waged by Democrats against many of President Bush's judicial picks.
Just how bad has it gotten?
Scalia noted that his own nomination to the high court two decades ago was approved by the Senate in a 98-0 vote. Today, however, "You could not [even] get a judge with my views confirmed to the Court of Appeals."
And he also decried the left's refusal to describe liberal judges as such, noting that instead such code words as "mainstream" and "moderate" are used.
"What is a moderate interpretation [of the Constitution]?" he asked. "Halfway between what it says and halfway between what you want it to say?"
No doubt, Scalia's audience was entertained - especially when he told them in advance that he'd "brought three speeches" but "decided to give the most provocative one."
In between the colorful sound bytes, however, Justice Scalia made some important points, as he almost always does.
And the most important is that judges are meant to interpret the law, not legislate their personal sense of morality from the bench, ignoring the popular will.
Let's hope other jurists were listening.
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