Scalia: Beware Moralist Judges

Justice Antonin Scalia railed against moralizing judges at a banquet Wednesday night.

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.

I couldn’t agree more.

FILED UNDER: Democracy, Law and the Courts, LGBTQ Issues, Supreme Court, US Constitution, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. legion says:

    Ummm… so what does he think about his buddy Alito’s close ties to (and public promise to further the aims of) the religious right?

  2. James Joyner says:

    Is there some evidence that Alito is going to impose his religiously-inspired moral values on the nation over the objections of the federal and state legislatures?

  3. Jack Ehrlich says:

    In which speech did Alito make any promise to advance the case of the religious right? The answer is the one made up by The propensity to lie runs deep in the left.

  4. MrGone says:

    James, there’s no evidence yet, but certainly the religious right is extremely happy about Roberts and Alito. I am frankly unable to attribute this joy to their expectation of merely good and scholarly justices. In fact, if the recent new laws restricting abortion are any indication, I would say that those on the far right clearly have an expectation of outcome. I could be wrong, but that’s the way it looks to me.

  5. Jack Ehrlich says:

    Maybe Americans are tired of judges like Ginsberg, who, while in South Africa made statements to the effect that it was OK to take guidance from foreign law in deciding cases before the SCOTUS. This may be an impeachable offense, if actually done. This nation uses the U.S. Constitution as document upon which our laws are based, not what is done in other nations. Most came here to escape the ways of foreign nations. Why would we want to bring failed systems here? There is no right to privacy written in the Constitution nor is there the right to abortion. If there were, it would not have taken two hundred years to find. Sodomy can be determined to be illegal if the legislatures of the many States so decide. Marriage is licensed by the State, no Constitutional right exists. I encourage those on the left to have the document read to them.

  6. James Joyner says:

    MrGone: The reason for conservative happiness, I think, is that they see Alito as replacing a justice who was very much like what Scalia condemns. Alito is unlikely to strike down state abortion laws, substituting his view for that of the populace. But the views of the populace are more in line with the religious right.

    Roberts replaced Rehnquist and will be, at best, an even trade ideologically.

  7. MrGone says:

    Sorry James, I just don’t see it. It’s one thing to want a conservative justice but the support of and reaction to Alito’s nomination was, to me, over the top. This argument is similar to that of the intelligent design proponents that claim it has nothing to do with religion. False and obviously transparent. Again, you may disagree, but that’s what I see.

  8. MrGone says:

    James, I also think it’s strange for you to imply that Scalia condemns judges like O’Connor. She voted WITH Scalia ~84% of the time. Are you suggesting we need to get rid of him too?

  9. Tano says:

    I think this reveals exactly what the problem with Scalia, and the religous right, is. Scalia says: “a panel of judges is not inherently qualified to determine the morality of such behavior”. He prefers the legislature to do that.

    The dispute, of course, is not whether it should be the judiciary or the legislature that defines morality, but whether it is properly in the domain of any branch of government to define morality. The liberal view (and the “small government” view) is that government, through its laws, decrees what that rules should be regarding the resolution of conflicts between free people. We dont send people to jail for stealing because god says stealing is wrong, but because by stealing, one violates the rights of ones fellow citizens. Private consensual sex between adults is not an issue for the government to deal with at all, for it does not violate the rights of either of the participants, nor anyone else. On such matters, we are to be free. If 95% of the population detests homosexuality, they still should have no right whatsoever to pass laws against it, because the majoritarian views of the morality of these acts is irrelevant. So long as one doesnt violate the basic rights of ones fellow citizens, we should be free to live our own lives as we see fit.

    Scalia objects to liberal judges carving out room for freedom. The liberal judges do not, thereby, define what is moral. They define limitations to the scope of power of the government. The morality of the act is a separate matter, to be dealt with by the free person and their conscience, their church, their god, as they see fit.

    The call for the legislature to enter this space where the courts have ruled is an invitation for the government to regulate the behavior of free people on the basis of the majority’s sense of morality. It is a big step toward theological authoritarianism, and I am shocked that JJ can’t seem to grasp that.

  10. legion says:

    Hmmm… perhaps Judge Alito’s personal thank-you note to James Dobson provides some hint:

    Dear Dr. Dobson,

    This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family for your help and support during the past few challenging months.

    I would also greatly appreciate it if you would convey my appreciation to the good people from all parts of the country who wrote to tell me they were praying for me and for my family during this period.

    As I said when I spoke at my formal vestiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force.

    As long as I serve on the Supreme Court, I will keep in mind the trust that has been placed in me.

    I hope we’ll have the opportunity to meet personally at some point in the future. In the meantime, my entire family and I hope that you and the Focus on the Family staff know how much we appreciate all that you have done.

    Sincerely Yours, Samuel Alito

    I wonder what Mr Erlich’s reaction would be if a newly-appointed SCOTUS justice wrote such a letter to Al Franken… The propensity of the Right to hypocritically bless acts they would condemn in the Left runs deep…

  11. James Joyner says:

    Legion: Not sure I see the problem in the note. Not a fan of Dobson’s by any means but if his followers were praying for Alito it seems an innocent enough gesture for Alito to say “Thank you.”

  12. Jack Ehrlich says:

    Tano, you are incorrect if you think your acts in private do not effect those around you. If that thinking is liberally applied, than use of controlled substances should be none of the governments business. But societies, over time have decided what behaviors are to be acceptable and those that are not. Tano, your rights stop at the edge of mine. If your behavior, and the insistance that that behavior be acceptable infringes on my rights to live my life according to my beliefs. Which all means if you are a homosexual (gay means happy and gays are not happy) and you insist I must accept your deviate behavior and you want to teach my children that it is ok to commit sodomy, than you are infringing on my rights. If you don’t think so, mone in next to a meth dealer.

  13. legion says:

    Wrong again, Jack.

    your rights stop at the edge of mine. If your behavior, and the insistance that that behavior be acceptable infringes on my rights to live my life according to my beliefs.

    You’re ok up until you get to the “acceptable” part. If a behavior is illegal, it’s because society has already declared it unacceptable. If it’s legal, you have the right to be offended, and nothing more. The same right a gay man has to be offended when he sees you kiss a woman in public. And I have no more right to teach your children it’s “right” than you have to teach my children it’s “wrong”. Teach your own damn children.

    Also, I’m no lawyer, but I believe the right to privacy is implied under the phrase “freedom from unreasonable search and seizure”. If my interpretatin here is wrong, then I see no basis for requiring the police to ever get a warrant – they would be able to come into your house any time of the day or night and look for anything they wanted. Bear that in mind before you go dissing privacy…

  14. Tano says:

    Your position is so ludicrous it is hard to believe that you actually hold it. Rather self-contradictory as well. You seem to claim that a liberal homosexual has some overly expansive conception of his/her individual rights because they beleive that government has no business regulating their private consenual behavior. And yet you grant to yourself such an absurdly broad grant of individual rights that you can claim not only a right to be offended by what you imagine people are doing privately, but to use the enforcement powers of the government to suppress it.

    You seem terminally confused between the concept of freedom – for the individual – i.e. individual rights, and the power of government. You pretend that a law against homosexual behavior is an expression of your rights (I guess you claim a right to dictate behavior to others), but such a law is, plain and simple, an exercise of government power. Its odd isn’t it – these days it is usually conservatives who mock and ridicule the notion that people have a right not to be offended.

    Your “acceptance” of homosexual behavior is not the issue. Your opinion on the matter is your business – you are entitled to your opinion, as others are of theirs. You do not have the right, as an individual, nor collectivly through the legislature, to impose your opinions on other peoples behavior, so long as that behavior does not affect you. And by “affect you” I dont mean that it disturbs your little mind. If some gay person were to try to force you to engage in certain behavior, you would have every right to use force to repel them, and/or to expect the government to punish them for violating your rights. But your rights do not extend to dictating what other people can do with consenting third parties. In short, mind your own business. Your political position represents a formula for tyranny, plain and simple. (And it cuts both ways – do you really want someone like me – some majority of people like me that may come to power some day – to criminalize some aspect of your private behavior because I find it offensive?

  15. floyd says:

    antonin scalia, is a true american hero and one of the finest jurists in world history.his mental clarity is rare and precious.

  16. floyd says:

    tano; NICE rant, albeit hypocrisy!