No wonder Supreme Court Justice Antonin Scalia is hesitant to let reporters see and record his speeches; the guy has a penchant for saying odd things. At an appearance at Harvard’s Kennedy School of Government this week, Scalia articulated quite a judicial philosophy.
Supreme Court Justice Antonin Scalia says he believes “abstract moralizing” has led the American judicial system into a quagmire, and that matters such as abortion and assisted suicide are “too fundamental” to be resolved by judges.
“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.
This is a clever way of saying Scalia prefers Congress to handle these controversies. Since the issues deal with personal, life-or-death decisions, we should, according to Scalia, stop asking “impartial” jurists to consider our rights under the law and start asking politicians to decide.
Scalia, it seems to me, has it backwards. People benefit when “fundamental” questions like these are taken out of the political realm. If Scalia’s approach were in place at the time, the Supreme Court would have never heard Brown vs. Board of Education in 1954 and questions over segregation would have been left to Congress and popular opinion — which means “separate but equal” would have lived on indefinitely.
But this was hardly the most contentious remark from Scalia’s speech. There was also this gem:
“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.
If we’re letting the majority draw the lines, then we’re not “worrying” enough about tyranny of the majority. As my friend David S. emailed in response to Scalia’s speech, “I believe that’s what we call mob rule.”
The will of the majority can’t set the basis for our collective rights; that’s why we have a Constitution that sets limits on the power of government and offers guarantees against popular will. Returning to the segregation example, if the majority (whites) was empowered to “draw the lines,” the rights of the minority (African Americans) would be crushed.
Maybe this would be a good time to remember that Scalia is Bush’s favorite Supreme Court justice and will have a chance to name several judges just like him to the high court if given a second term.
And, finally, I’d be remiss if I failed to mention that as part of Scalia’s thoughts on “fundamental” issues, the justice also touched on his opinions regarding sexual privacy.
Earlier in the evening, Scalia ridiculed the European Court of Human Rights’ 2000 decision striking down British legislation that bars group gay sex on the grounds that the law intruded upon private life.
He asked — rhetorically — how many individuals would have to be involved in a sex act for it to no longer qualify as “private.”
“Presumably it is some number between five and the number of people required to fill the Coliseum,” Scalia joked.
[…]
But Scalia said his personal views on social issues have no bearing on his courtroom decisions.
“I even take the position that sexual orgies eliminate social tensions and ought to be encouraged,” Scalia said.
Given the context, I’m not sure if he was kidding, but even seeing the words “Scalia” and “sexual orgies” in the same sentence is enough to give me the willies.