Bob Ward
Special to The Aspen Times

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July 21, 2013
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In Snowmass, Justice Antonin Scalia says judges should not be policymakers

U.S. Supreme Court Justice Antonin Scalia used the twin terrors of Nazi Germany and radical Islam to warn a Snowmass Village audience Saturday about the dangers of judicial activism.

Speaking to a gathering of the Utah State Bar Association at the Westin Resort in Snowmass Village, the longest-serving justice on the nation’s highest court lamented a trend among federal judges, including his colleagues on the Supreme Court, to read and interpret the U.S. Constitution as a “living document” that changes over time.

Scalia described himself as an “originalist” in his reading of legal texts.

“I believe that texts should be read to mean what they were understood to mean when they were adopted,” he explained.

In other words, he sees the Constitution as a “static document” that means the same thing now as it did at the time of its creation.

When judges begin to reinterpret founding documents like the Constitution and make value-laden decisions about individual rights and liberties, Scalia said, they distort the workings of a democratic society. The title of Scalia’s talk, “Mullahs of the West: Judges as Moral Arbiters,” underscores his point that societal decisions about morality and human rights — most of which have no right or wrong answers — should be made in the political arena and not by the courts.

“Who in a democratic society should have the power to determine the government’s view of what natural law is?” the justice asked. “In an open, democratic society, the people can debate these issues.”

Scalia cited numerous issues that have been thrown to the courts — a woman’s right to an abortion, society’s right to execute someone for a crime, whether “homosexual sodomy” ought to be allowed — and claimed that judges are unqualified to answer them. Medical doctors, engineers, ethicists and even “Joe Six Pack” would be just as qualified as a legal professional to settle some issues that have come before the high court.

Instead, he said, society at large should set its own moral standards. For example, when women’s suffrage became an issue in the late 1800s and early 1900s, the Supreme Court wasn’t asked to interpret the Constitution. Congress responded to public pressure by giving women the right to vote.

“We understood in 1920 that the Equal Protection Clause meant today what it meant when it was adopted,” he said. “We did what the Constitution required — we adopted the 19th Amendment.”

Scalia is widely regarded as a strident conservative on the nation’s high court, and he is known to deliver his legal and political opinions in blistering language. However, the words “conservative” and “liberal,” along with the party labels Republican and Democrat, hardly appeared in Saturday’s speech. Rather, he used mostly legal terminology to discuss politically charged issues.

His chief contention, which he delivered with occasional humor, was that judges are not policymakers and should leave policy decisions to elected lawmakers, who answer to the citizenry.

“I accept, for the sake of argument, that sexual orgies eliminate social tensions and ought to be encouraged,” he said, earning a few laughs from the Utah lawyers. “Rather, I am questioning the propriety, indeed the sanity, of having a value-laden decision such as that made for the entire society by unelected judges.”

Scalia opened his talk with a reference to the Holocaust, which happened to occur in a society that was, at the time, “the most advanced country in the world.” One of the many mistakes that Germany made in the 1930s was that judges began to interpret the law in ways that reflected “the spirit of the age.” When judges accept this sort of moral authority, as Scalia claims they’re doing now in the U.S., they get themselves and society into trouble.

Scalia was nominated to the Supreme Court by President Ronald Reagan in 1986 and was approved by the Senate, 98-0. Such a result would be impossible in modern-day Washington, D.C., where a judicial nominee’s integrity and legal credentials take a back seat to his or her political leanings.

“I’m not happy about the intrusion of politics into the judicial-appointment process,” Scalia said. But the politicization of the judiciary is a natural outgrowth of the work that today’s judges are doing.

“If you’re in a system where the judges do the constitutional draftsman’s work, I think you have to accept the politicization of the appointment and confirmation process,” he said.

Scalia received a standing ovation.


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The Aspen Times Updated Jul 21, 2013 04:22PM Published Jul 24, 2013 12:18PM Copyright 2013 The Aspen Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.