Knino Knows

Justice Scalia on judicial hegemony. Link.

Here is an excerpt:

U.S. Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected Legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

I think Scalia has this about right. Despite the Court's complaint about the majority imposing its morality through laws enacted in the democratic process, the Justices are indeed imposing their moral views when they decide cases like Roe and Lawrence. There is no reason to think that a body of unelected lawyers has a better functioning moral compass than the People who are supposed to rule in a free society.

I also appreciate Scalia's willingness to speak up at a time when some of his colleagues on the Court are, like Archie Bunker, trying to stifle criticism of the Court and judicial activism in the name of "judicial independence." Wasn't it Franklin who said what makes America special is "here the People rule"?

I can't help it! Here is another excerpt:

"He said code words such as "mainstream" and "moderate" are now used to describe liberal judicial nominees.

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" he said."