One justice's vision of role of the courts
During the presidential campaign, Supreme Court Justice Antonin Scalia received a strange letter in his home mailbox.
It was a fundraising flier from Democratic strategist James Carville. The appeal invoked an issue apparently thought to be so frightening that it would prompt recipients to fork over massive amounts of money to the Kerry campaign.
The "terrifying" message came with the headline: "What Would You Think of CHIEF JUSTICE Scalia?"
When Scalia related the story at a recent gathering of the conservative Federalist Society here in Washington, the audience erupted into sustained and thunderous cheers and applause.
Not exactly the reaction Mr. Carville intended. But the incident sharply illustrates the gulf that exists between conservatives and liberals over the future direction of the US Supreme Court.
While Scalia is viewed by many liberals as a right-wing ideologue bent on overturning Roe v. Wade and other progressive decisions they favor, he enjoys a far more exalted status among a growing cadre of conservative law students, lawyers, professors, and judges. They see him as an intrepid legal warrior seeking to put rules back into the rule of law.
His is an approach to law that seeks to limit the ability of judges to use judicial power to impose their own value judgments and policy preferences on the nation. It is a form of judicial restraint embraced by President Bush, who has said he will seek to appoint future Supreme Court justices in the mold of Scalia and Clarence Thomas.
What might that mean for the high court and the future of American jurisprudence?
In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges.
And he warns that the high court's willingness to take up moral questions that are still open to debate within society will increasingly mire the court in a political morass. It is a trend that has made judicial nominees targets in a bitterly partisan Senate confirmation process featuring character assassination and filibusters.
"One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court," Scalia told his Federalist Society audience, which included many individuals thought to be on a White House shortlist for a high-court post.
"The lesson is, in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy," he said. "If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable."
His comments come at a time when Washington is rife with speculation about Chief Justice William Rehnquist's ongoing battle with cancer and the potential for a Supreme Court vacancy.
Scalia was once considered a prime candidate for chief justice. But some analysts say the highly partisan nature of the Senate confirmation process and the intense focus on abortion by Senate Democrats make it unlikely that he could be elevated to the top job.
Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law.
He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide.
Such cases highlight competing visions of the scope of a judge's power to discover new constitutional rights or expand existing rights. Scalia believes judges must look to the text of a disputed constitutional provision and interpret it based on the intent of the drafters. To Scalia, a static constitution is a protection of American liberty because it sharply limits a judge's ability to amend the Constitution by mere judicial fiat.
His is a minority view. Many more judges in the US and overseas have adopted the approach that constitutions are living documents, open to contemporary interpretation to address modern concerns. Many see their job as working to achieve a measure of justice.
Scalia calls it "the power to do good." He denounces it as an open invitation to judicial activism.
"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."
"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so."
The issue is not new. Every Republican presidential candidate since Richard Nixon has promised to appoint justices who believe in judicial restraint, Scalia says. "And every Democratic candidate since Michael Dukakis has promised to appoint justices who will uphold Roe v. Wade, which is synonymous with judicial activism."
He added that each year the conflict over the future of the court has grown more intense and more political. "I am not happy about the intrusion of politics into the judicial appointment process," Scalia said. "Frankly, however, I prefer it to the alternative, which is government by judicial aristocracy."