Scalia Slams Judicial Activism

Justice Antonin Scalia railed against the activist tendency of his Supreme Court Brethren in a speech at the Wilson Center yesterday. As always, he was colorful.

Scalia Slams Juvenile Death Penalty Ruling (Newsday-AP)

In a 35-minute speech Monday, Scalia said unelected judges have no place deciding issues such as abortion and the death penalty. The court’s 5-4 ruling March 1 to outlaw the juvenile death penalty based on “evolving notions of decency” was simply a mask for the personal policy preferences of the five-member majority, he said.

“If you think aficionados of a living Constitution want to bring you flexibility, think again,” Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” “Why in the world would you have it interpreted by nine lawyers?” he said.

Scalia, who has been mentioned as a possible chief justice nominee should Chief Justice William Rehnquist retire, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. Citing the example of abortion, he said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process. “Abortion is off the democratic stage. Prohibiting it is unconstitutional, now and forever, coast to coast, until I guess we amend the Constitution,” said Scalia, who was appointed to the court by President Reagan in 1986.

He blamed Chief Justice Earl Warren, who presided from 1953-69 over a court that assaulted racial segregation and expanded individual rights against arbitrary government searches, for the increased political role of the Supreme Court, citing Warren’s political background. Warren was governor of California and the Republican vice presidential nominee in 1948. “You have a chief justice who was a governor, a policy-maker, who approached the law with that frame of mind. Once you have a leader with that mentality, it’s hard not to follow,” Scalia said, in response to a question from the audience.

Scalia said increased politics on the court will create a bitter nomination fight for the next Supreme Court appointee, since judges are now more concerned with promoting their personal policy preferences rather than interpreting the law. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us,” he said, explaining that’s why senators increasingly probe nominees for their personal views on positions such as abortion. “When we are in that mode, you realize we have rendered the Constitution useless,” Scalia said.

Exactly right. My friend Julian Sanchez, responding to my charge of judicial fiat in yesterday’s gay rights ruling in California, said, “That’s what constitutional rights guarantees are for: To flip the bird at the democratic process when majorities don’t feel like treating minorities fairly and equally.” That’s right as far as it goes.

Using the Scalia model, judges would interpret a constitution (whether state or federal) in light of the rights that those who enacted the protection intended to create. If judges can simply impose their view of what’s “fair,” then we may as well not have written constitutions but merely fairness mediators. It least that way, the judges wouldn’t have to pretend to “discover” that a practice, banned at the time the constitutional provision was enacted and extant for decades, even centuries, thereafter was suddenly contrary to it.

One has to love, too, the AP’s description of the Warren era: ” a court that assaulted racial segregation and expanded individual rights against arbitrary government searches.” No bias there!

Update (1022): Michael Demmons argues against what I believe to be a straw man:

[T]he courts exist for a reason, and while there are people out there who will use anti-gay rhetoric and innuendo to try to shame us into not using them, I believe courts actually, you know, serve a purpose, and we should use them if we need to (just like conservatives do when they want the courts to force people to hang religious documents in public buildings, for example.) Courts do not exist to enforce the will of the majority. That̢۪s what conservatives seem to believe. When the minority is right on an issue, which it is on this one, and when the House and Senate (the majority) aren̢۪t willing to see that, then the courts become our only option.

I am unaware of any cases wherein social conservatives have gone to court to “force people to hang religious documents in public buildings.” Indeed, courts have no such power. Rather, public officials have hung religious documents in public buildings and been taken to court by those who wish courts to force them to take them down. As a non-theist, I’m happy for the public policy outcome that usually results. As a strict constructionist, however, I maintain that the Framers rather clearly did not intend for the Establishment Clause to be interpreted so broadly, let alone be applied to the states via the 14th Amendment. Both of those innovations came decades after the Constitutional provisions in questions were enacted.

Further, strict constructionists don’t argue that the courts should always bow to the majority. Rather, they argue that the elected leaders in the legislative and executive branches are empowered to make public policy so long as it doesn’t exceed the powers granted to those bodies by the Constitution. So, if a majority enacts an ex post facto law, bill of attainder, requires citizens to quarter troops during peacetime, grants government employees the right to search citizens without a warrant, etc., etc., etc., the courts have the duty to strike such laws down. By the same token, if “marriage” was restricted to relations between one man and one woman during the time when a constitutional provision was enacted and allowed to mean that for generations thereafter, it’s rather clear that the law so permitting is not unconstitutional. Laws may be poorly thought out, outmoded, silly, offensive, or otherwise objectional without violating the Constitution.

“But what about civil rights?!” is the refrain usually heard in such circumstances. I would argue that the Supreme Court of the era between the passage of the XIVth Amendment and the historic rulings of the early 1950s (Sweatt v. Painter and Brown v. BOE, most notably) were intentionally misreading the plain language of the Amendment. Still, one could argue that the enactors of the Civil War Amendments did not mean to create an integrated society, merely to end the most horrendous vestiges of slavery. Regardless, though, most of the progress that was actually achieved from the Civil Rights era came from the democratic process, not the courts. The civil rights marches and the harsh treatment to which the demonstrators were subjected shamed the majority into changing their ways. This was enacted into legislation via the Civil Rights Act of 1964 and Voting Rights Act of 1965, most notably.

I don’t doubt that judicial activism occasionally provides good outcomes, as defined by forcing policy changes that later generations will view as correct. I do believe, for a variety of reasons, that process matters even more than outcomes. When unelected leaders issue pronouncements on controversial issues, they risk undermining the legitimacy of government.

Certainly, abortion would not be as divisive–and occasionally violent–a political issue had it been left to the democratic process. As Chris Geidner implies, the same could be the case with the gay rights movement.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Just Me says:

    I really like Scalia. I think he made some very good points about judicial activism in his dissent on the juvenile death penalty case.

    I think one problem with the current way of thinking is that we think dumb laws always seem to amount to some constitutional violation, when in fact they are really just dumb laws. If a person doesn’t like a dumb law, they should seek to change it through legislation, debate it and advocate for their position, they shouldn’t seek the courts as their first recourse.

    Some laws really are dumb laws, but if we find some kind of constitutional right subject in every dumb law, eventually the courts are going to render themselves about as useless as they are rendering the legislative proccess.

  2. Jim Henley says:

    Well now I’m sad. I like you AND Julian, and you’ve both now referred to each other as your “friend.” In mediaspeak that means you hate each other’s guts. Bummer.

  3. James Joyner says:

    Jim: Heh. No, merely polite disagreement. I’ll gladly share another bottle of pinot noir with Julian next time I’m in DC.

  4. Julian Sanchez says:

    Well, I think we can at any rate agree on this: Talk about “circumventing the democratic process” or “denying the will of the people” isn’t a particularly useful way of framing the question. When a court strikes down a legislatively enacted statute in the name of a constituional right, it’s “overruling the will of the people” more or less by definition, and we agree that’s what courts are there to do: check majorities. The real question is: Was the question rightly decided or not? If the judge correctly applied the law, then the “will of the majority” is beside the point. If the judge wrongly applied the law, then THAT’s the objection, and it doesn’t even really matter if opinion polls show 51% actually approve of the result after all.

  5. James Joyner says:

    Julian: I think that’s right. I’ve got no problem with the Constitution overriding the will of the majority; that’s what written constitutions do. I have a big problem with judges imposing their personal view of justice on the majority, however.

  6. Katherine says:

    Brown v. Board of Ed and Loving v. Virginia are wrong according to Scalia’s theory. He tries to distinguish them, and I’m glad he does, but it’s a totally unconvincing attempt. To me the plain language of the 14th amendment makes it illegal to deny the vote to women or, say, gay people. Scalia’s theory says that’s incorrect. I don’t think he’s DELIBERATELY misreading the text to get the political result he wants, but I do think that he is misreading the text in a way that he wouldn’t if he didn’t like the results. When we hear that the 14th amendment allows Jim Crow, there’s a gut reaction–“That can’t be right”–that plays a big role in our decision and sets us down one path or another in our legal reasoning.

    It happens with liberals too. When conservatives read Roe v. Wade, they think “that can’t be right”–and they see the internal flaw in the decision’s logic long before liberals do.

    That’s why you can’t divorce politics from judging. Which is not to say one shouldn’t try to do it. It’s like objectivity in journalism–not attainable, but a goal worth striving for.

  7. James Joyner says:

    Katherine: I don’t disagree that even judges living by Scalia’s rules will sometimes disagree. For example, new technologies will come along and bend the meaning of “interstate commerce” such that reasonable people will disagree.

    Scalia isn’t being inconsistent in this case, though. It’s true that one could stretch the “plain meaning” of the equal protection clause to extend to gay marriage. But Scalia doesn’t invite that. Instead, he calls for “interpreting the Constitution according to its text, as understood at the time it was adopted.” Rather clearly, since gay marriage would have been anathema at the time, it was far, far outside the intent of those who wrote it.

  8. rick kerns says:

    What’s the remedy? What’s the penalty for lawyers sitting on benches who usurp the power and tear up the basic fabric of our democracy?
    The Judiciary Committees of the Congress should be composed mainly of non-lawyers who will hold hearings on illegitimate decisions and bad judges. Impeachments and contesting judicial grabbing of power should be a regular feature and role of Congress.