Politicians should decide on controversial moral issues, US Supreme Court judge Antonin Scalia tells CAROL COULTER
"I TRY to be provocative and get them [students] thinking about these matters," Judge Antonin Scalia told The Irish Timeslast week.
Judge Scalia was in Dublin to speak to students in Trinity College and UCD. Characteristically, he chose as his title “Mullahs of the West: Judges as Moral Arbiters”.
He is adamant that judges should not be moral arbiters and has been sharply critical of the direction taken by the US Supreme Court in the latter half of the 20th century.
He has been a member of it since appointed by President Ronald Reagan in 1986.
“I am critical of where we now find ourselves, where the most profound moral judgments in democratic societies, where there are disagreements on where moral right lies, are now being made by judges. For example, on the right to abortion or to homosexual sodomy or to suicide – judges are no more expert than anyone else on these issues.”
What about those who argue that judges make such decisions because of the cowardice of politicians who refuse to face up to them?
“That’s the argument of the losers when the democratic process does not produce the answer they want.”
He is particularly critical of the growth of human rights jurisprudence and describes the European Convention on Human Rights as “a grab-bag of vague provisions”.
“The right to privacy – who could object to that? – but what it means is subject to debate. A panel in Strasbourg held that this right was violated by the English applying their law on gross indecency to a five-man sexual orgy. In that case it’s not even your own country doing it to you, it’s foreigners.”
Judge Scalia considers that this type of jurisprudence flows from the doctrine of constitutional evolution, that a constitution is a “living document” to be interpreted in the light of evolving social norms, which he vehemently rejects.
“If you give the constitution the meaning it had for its founders, you can’t go wrong,” he says. Therefore there can be no doubt that in the US the death penalty is constitutional, although some argue it is not, he adds. Those who wrote and adopted the constitution accepted the death penalty for felonies.
The US constitution and the Bill of Rights were never intended to be a compendium of all rights, he says. There are a limited number of provisions in the Bill of Rights, referring to rights that were under threat from the government at the time.
“Unless the Supreme Court had seized the abortion issue and made it into a federal issue, I doubt very much congress would ever have backed into it. They were delighted the Supreme Court saved them the trouble.”
Judge Scalia has always been unapologetic about his conservative views and his Catholic faith, but he told The Irish Times: “I take no position on what the law ought to be. I have my own views but they are not an issue for my judicial role. They are issues that ought to be decided by the people.”
By referendum?
“I’m not sure I like that. Representative, indirect democracy is the manner in which the voice of the people prevails.”
In relation to US politics, this means that decision-making should rest, as far as possible, with the individual states. He is concerned that federalism has been eroded there over the past century.
“There is no reason why Utah has to have the same views as New York. Federalism produces more happy people.
“If you have a large group of, say, 100 and 51 of them want one thing, 49 will be unhappy, but if you have 10 groups of them, with six against 10, only 40 will be unhappy – and in some states you will get big majorities for one view or another.”
Judicial appointments in the US are avowedly political affairs, with appointments to the Supreme Court scrutinised by congressional committee. Judge Scalia puts this down to the politically interventionist role played by the court.
He is convinced this will happen here as judges are asked to make controversial decisions.
“If you have a living constitution, you are appointing a person to do what you want with it. When judges become a significant political force there will be political interrogation of judges and people will want some say in who these people are.”
Judge Scalia is married to an Irish-American, Maureen McCarthy, with whom he has nine children, and is a frequent visitor to Ireland, having lectured in NUI Galway last year. Charming and rather mischievous, he seems to revel in his reputation for legal conservativism.
“You are meant to be scared,” he jokes.