The article reprinted below is from the New Zealand Herald and refers to a visitor:
Justice Antonin Scalia
'Activist' judges condemned
23.10.2004
By JOHN ROUGHAN
To lawyers assembled in Auckland from all around the world yesterday, their lunch speaker needed no introduction.
Justice Antonin Scalia is the most conservative judge of the United States Supreme Court.
His views are hailed by some but feared by others, who worry that a re-elected George W. Bush might make him America's next chief justice.
He opposes "judicial activism", the idea that judges can adapt the law to fit changing social values.
Changing the law is the job of elected legislatures, he says, not judges.
He had a private meeting with New Zealand's Chief Justice, Dame Sian Elias, before his address yesterday. They talked, he said later, about courts' common problems.
And she seemed to enjoy the blunt message he delivered to the gathering, the annual meeting of Lex Mundi, an international organisation of law firms, hosted this year by Auckland firm Simpson Grierson.
This was the age of the "judge moralist", he said. But it would pass when people realised that nothing in a judge's training or role gave him any more expertise than anyone else in issues of morality and human rights.
"Whether a woman has a natural right to an abortion, whether to assist a man to take his own life is a crime, whether it is unfair to permit marriage between people of opposite sex but not people of the same sex ...
"These and many other similar questions involve basic morality."
In an open democratic society, it was for the people to debate those issues.
"But in these early years of the 21st century that is not the way we proceed. We have become addicted to abstract moralising."
And abstract moralising could be dangerous. Who could disagree in the abstract, for example, with Article 8 of the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, which provided that "everyone has the right to respect for his private life".
Yet four years ago, that article was used to invalidate a British law which withdrew privacy protection from homosexual acts if more than two people took part.
The European court upheld the privacy of "a five-man homosexual orgy which the participants considered so little private that they videotaped it".
Justice Scalia said he took no position on whether sexual orgies should be prohibited to protect public morals.
"I do assert, however, that the binding answer to that value-laden question should not be provided by seven unelected judges."
The European court was not the only offender. "My court does it all the time."
Its decision in Roe v Wade permitted abortion on demand in the United States
"Two terms ago we held laws against sodomy, that had existed in perfect conformity with the Constitution of the United States for 200 years, to be impermissible," he said.
"We have held it impermissible to let juries decide, as they have done in the past, that a murderer could be condemned to death despite his mental retardation or despite being aged under 16 when he killed ...
"Why have not judges always been such pioneering policy makers? The answer is that until relatively recently the meaning of laws was thought to be static - what they meant at the time of their enactment could readily be determined in most controversial areas from the accepted and unchallenged practices of the time.
"The change occurred in the last half of the 20th century and I am sorry to say my court led the way.
"It was my court that invented the notion of a 'living constitution'.
"We decided the meaning of the constitution could change over time in accordance with 'the evolving standards of decency that marked the progress of a maturing society'.
"And it was the justices of the Supreme Court who would decide when there has been an evolution and when the evolution amounts to progress."
For a time, this "power to do good" had been the envy of the judicial world.
But through international conventions of human rights and the like, all judges now had the power.
"Surely it is obvious that nothing I learned in law courses at Harvard, none of the experience I acquired practising law, qualified me to decide whether there ought to be a fundamental right to abortion."
If judges continued to decide questions that should be put to voters, he concluded, the Judiciary would face increasing political accountability.
US supreme court justice Antonin Scalia ...
ON HOMOSEXUALS
"This court has no business imposing on all Americans the resolution favoured by the elite class from which members of this institution are selected, pronouncing that "animosity" toward homosexuality is evil. I vigorously dissent."
ON PROTESTS AGAINST THE COURT
"The people know their value judgments are quite as good as those taught in any law school - maybe better."
ON ABORTION
"The issue is not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense ... Of course it is. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not."
***
COMMENT BY RS:
"The issue is not whether the power of a woman to abort her unborn child is a "liberty" in the absolute sense ... Of course it is. The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not." A. SCALIA
That's beyond glib to me, to tell a person she has a liberty in an absolute sense but not one that we will protect legally. You can speak, but keep your mouth shut; you are free to marry someone of any race you please, so long as not of at different race, etc.
Henry Ford's line was that you could have any color automobile (Model A, T) you wanted so long as it was black. This was taken as a joke then when it came to automotive paint jobs.
Black was the only color he used. It was no doubt cheaper to paint cars only one color and avoided marketing and distribution problems; maybe that's why those old-fashioned flivvers look so good in the old black-and-white movies.
Somehow issues of personal identity and autonomy, such as the gender liberty recognized in Lawrence v. Texas (2003), freedom to marry regardless of race in Loving v. Virginia (1967), privacy in Griswold v. Connecticut (1964), abortion in Roe v. Wade (1973), and the like seem more important than automotive buyer paint job choice.
Especially coming from the mouth, not of an avowed racist such as Henry Ford, but a justice of the Supreme Court. If he can't see through his cant, perhaps we can and should.
What is a right?
Something that exists in never-never land? In some "absolute sense?" That means never-never land, Utopia. We'll never see it. Not if Justice Scalia has HIS way. Is his personal morality dictating what he can, and cannot see?
A right is a claim enforceable in a court of law.
Otherwise it is just a hope, bound for disappointment.
Scalia cannot see what does not appear in the text of the Constitution. Okay, I'd say that's good for the average fourth-grader. But by the time one reaches the seventh or eighth grade, certainly high school, one learns that the world is a little more complex than what is written down in any recipe or how-to book.
Scalia is treating the Constitution like a recipe book. If the recipe isn't in the book, you can't cook it. And if you can't cook it, you can't eat it.
You may not add recipes, even though tastes change and no one wants to eat what you are cooking.
Especially when it comes to liberty issues.
One can swallow this but not that.
According to whom?
We swallowed slavery and Jim Crow for a long time.
We are experts at discriminating against people whom we see as being different than us.
Religion, skin color, 'racial' characteristics, political belief, gender...all of these things were worth killing for in an earlier day.
But not today.
We have left behind, at least to a considerable extent, so many of these things, by adding to the constitutional recipe book of what is allowed and what is prohibited on principle.
Scalia wants to ignore these as non-textual, hence illegitimate.
Because Jefferson and Madison thought X and we think Y, we're stuck with X unless we amend the Constitution. I don't buy it.
Jefferson and Madison, and Washington, for that matter, owned slaves. Hamilton was an abolitionist, having seen slavery in St. Croix, Virgin Islands, where he was raised.
Are we stuck with the views of the South, embodied in the Constitution, as to slavery, because, after all the Southern Framers had enough voting power to block the formation of the nation unless slavery were tolerated in the original slave Constitution of 1787?
Why wasn't Hamilton's abolitionist view the order of the day in 1787? He didn't have the votes. Pure political power, or the lack of it, condemned millions of fellow human beings to slavery for generations.
Even the Originals disagreed among themselves, so why should we pick and choose among them as to who was correct, except by today's lights? Today we know slavery was wrong. We are WAY ahead of the Framers on the human dignity scale. WE have universal human suffrage; THEIRS was limited to a few white property owners. The great and good over the great unwashed. Count me among the latter.
Or must we undergo a Civil War, or the almost impossible amendment process, before we can strike a blow for human respect and dignity by clearing the underbrush of our inherited prejudices and traditions.
Scalia wants to make it harder to strike a blow for freedom. He claims that doing so is 'non-textual.' Not part of the original understanding of the Constitution of 1787.
We keep growing further in time from 1787. Shall we not build on the foundation as our vision clears over time? Shall we be ruled from the grave by the dead hand of the past. Our common-law ancestors enacted a statute called Mortmain prohibiting the dead hand (mort main) in land tenures, as I recall. Why not prohibit mortmain when it comes to denying human dignity? Land ownership is an important human interest and right, but so is human dignity.
Do we have a constitutional principle which holds that human respect, dignity, liberty and autonomy (decision-making power) is unidirectional only? That once recognized, it may not be repealed? A one-way ratchet, as it's been called?
Maybe we should have a no roll-back provision to protect against those who support Justice Scalia's originalist view. Otherwise, if President' Bush is re-elected, he has the opportunity to pack the Court with several more Scalia's, Thomas's, and Rehnquists, and we may see a rollback in abortion, privacy, gender-identity freedom and the like.
We do have a principle that comes close, but is hardly strong enough, called the "reliance doctrine," under which the Court adopts when convenient the posture of acting as reluctant to withdraw previously recognized rights because a significant sector of the relevant population has come to rely on them, such police, business, and perhaps even individuals.
In this line, in Dickerson v. U.S.(2000), which revisited Miranda, Chief Justice Rehnquist, who opposed Miranda warnings given by police, upheld Miranda v. Arizona as constitutional law on the theory it had become ingrained in our American culture by now. Everybody in the world seems to know Miranda except your average criminal law client who forgot to keep his mouth shut when the police were peering down his throat.
I don't know how one would draft a workable Anti-ratcheting backward principle or amendment that couldn't be perverted into another's freedom to be intolerant. Perhaps you'd like to take a crack at it.
Assuming that your effort comes to nought, we need to rely on the good judgment of the nine justices. I'm not sure we want to see justices willing to roll back the clock to the yesteryear of Jim Crow. We should've learned something from all that bad road. We still have a ways to go. Who benefits from going back?
Whether we're talking white vs. black Jim Crow, based on the myth of alleged white supremacy, or straight vs. gay Jim Crow, based on alleged straight superiority, what are we doing?
The insider is devaluing the outsider and brooking no dissent. This is the very definition of cult-think, and something to recognize and avoid at all costs. This is the tyranny of the majority. Just because the majority of the population is white or straight in this country does NOT permit majoritarian tyranny. THis is why we HAVE a constitution.
After all it is a constitution we are speaking of, and not a recipe book.
As much as I disagree with the idea that we should be stuck in an originalist straight-jacket sized to fit Justice Scalia, I cannot begin to tell you how much I admire his principled stance when it comes to the constitutional right of confrontation in criminal cases.
As an attorney who has seen miscarriages of justice first-hand and fought against them for years at a time, I can assure you that the integrity of the fact-finding process of our criminal justice system is and ought to be paramount. There is no value whatsoever -- it casts the law and its officers into disrepute when revealed -- in jailing the innocent and allowing to roam free the guilty, no matter how much the public may wish to see 'results.' Too often they are rewarded with the wrong result. See the false convictions of rape and murder we read about so often.
Unfortunately, aggressive prosecutors are appointed to the bench and they DO NOT wish to see their false convictions hung around their necks over the robe. Bad politics.
Justice Scalia, in refusing to allow shortcuts that prevent the right of confrontation, face-to-face and through confrontive, direct, questioning, appears to support the Get-it-right view, and I commend him for it.
How interesting to strongly agree with a justice in one aspect of his jurisprudence but to disagree with him on another.
This makes it difficult to demonize the justice, doesn't it?
Does this make us happy, to be unable to demonize a person with whom we disagree?
Of course not.
It's a lot easier to flail at a demon than a fellow-human with whom you often agree.
Take a look at Justice Scalia's opinions protective of free expression. He's wonderfully protective.
And on race. He advocates that there is no favored race. See Adarand and the jail-toilet case from Richmond which we'll get to soon and whose name I'll think of as soon as I sign off. [Croson v. City of Richmond]
This is Justice Harlan's dissent in Plessy, stating "The Constitution is Color-Blind."
Of course color-blindedness does not do a lot to encourage advocates of affirmative action, but to the extent that this is code for reverse racism, maybe we should be more color-blind. As Ward Conley, black and a Regent of the University of California, has said, affirmative action punishes the wrong people and rewards the wrong people. Clarence Thomas regards it as crippling. Stephen Carter, in "Reflections of an Affirmative Action Baby," calls it stigmatizing.
When the Court last year revisited affirmative action in higher education in the U. of Michigan cases, Gratz and Grutter, the five to four decision upheld Justice Lewis Powell's view expressed as a single justice in Bakke, 1978, which claims that a little race-consciousness in college and graduate school admissions is okay, so long as not reduced to bonus points or quotas for race, as that's where the Court draws the Constitutional line.
But said, Justice Sandra Day O'Connor, with any luck we won't need affirmative action in 25 years.
The military needs affirmative action in higher education to obtain black officers from college ranks in case of a military build-up.
So the military brief asserted, to avoid the situation experienced in Vietnam where the officer corps was almost all white and the grunts in the ground units often largely black. The resulting insensitivity and hostility resulted in an army at war with itself up to and including fragging incidents.
What principle of constitutional law is prayed by its author to die in 25 years? Hardly a ringing endorsement of principle. But definitely a bow to historical reality and current need. There's more to Con-law than ringing principle.
Put too fine a point on any principle and you might find yourself disappointed, no pun intended.
What did Bismarck say? It's not a good idea to watch sausages and laws being made?