From the Asheville Citizen-Times, Justice Scalia Criticizes "Moralist" Judges:
Judges are no more qualified to make decisions on the morality of issues such as abortion and the death penalty than doctors, engineers “or even Joe Six-Pack,” U.S. Supreme Court Justice Antonin Scalia said Friday [in a speech in Asheville]. …
"In the United States and indeed throughout the world, belief in the expert has been replaced by the judge moralist,” he said. “We have become addicted to abstract moralizing."
Also, from the Charlotte Observer's coverage of the event:
In a speech titled “Mullahs of the West: Judges as Moral Arbiters,” the outspoken and conservative jurist told the N.C. Bar Association that constitutional law is threatened by a growing belief in the “judge moralist.” In that role, judges are bestowed with special expertise to determine right and wrong in such matters as abortion, doctor-assisted suicide, the death penalty and same-sex marriage.
Scalia said that approach presents two problems: Judges are not moral experts, and many of the moral issues now coming before the courts have no “scientifically demonstrable right answer.”
As such, he said, it’s a community’s job to decide what it finds morally acceptable, not the courts’. [Via How Appealing]
This has been a theme in Scalia's speeches for a while, and its worth some thought as the Court prepares to issue its big decisions of this Term. Three points:
First, I think Scalia is right that the idea of judge as moral arbiter is at the heart of most versions of living constitutionalism. There simply isn't any way for any particular person to decide how the Constitution evolves other than the way that person thinks it ought to evolve. (Yes, you could say that a judge should decide based on the majority's view of a particular issue, but (a) that's not how anyone actually decides, be it judge or commentator, and (b) it's odd [to say the least] to think that judges will make a better assessment than legislators as to majority preferences).
Second, I think Scalia is much too quick to assume this is a bad system. There's an entirely plausible defense of it. Our constitutional system is based on checks and balances. This is another check. In order to act, the executive and legislative branches need the approval (or, at least, the non-disapproval) of another branch of government, composed of a small number of indirectly elected, well-educated and politically asute people. Indeed, Madison wanted a "council of revision" with the power to block laws that seemed (to its members) unwise. True, this was voted down at the 1787 Convention, but it isn't obvious that he was wrong. The underpinnings of the council of revision depend not so much on the idea of moral expertise (Scalia's emphasis) but on the idea that enacting law should be difficult, and only those that can command a consensus across multiple independent branches should bind us. Thus the Supreme-Court-as-Council-of-Revision is liberty-protecting not as a substantive matter, but as a procedural matter, in the same way bicameralism is. It's another hurdle laws must surmount, and the more hurdles (one might say) the better.
Third, though, almost no one defends living constitutionalism on these grounds. What's most galling (to me) about living constitutionalism is not so much its practice as its defenders' arguments. The claim, very often, is not that Justices should rule according to what they think is best. Rather, it's said that the results follow logically and often inevitably from "the law" — with "the law" being not the Constitution's text and historical understanding, but something else that is largely unexplained. Whatever it is, it attempts to impart an authority that (on its face) goes beyond what Justice X (or commentator X) thinks is right. That, I think, is entirely illusory. The debate would be much better advanced if the question were posed forthrightly: should the Justices block laws they think are unwise? My answer to this is no, but I'm less confident than Scalia.
UPDATE: Andrew Hyman comments:
The Council of Revision advocated by James Madison and James Wilson would only have involved judges in vetoing new laws passed by Congress. The judges would have had no power to strike down old federal laws as unwise. Moreover, even as to new federal laws, Congress could override any veto by the Council of Revision.
In contrast, the living constitutionalists have grabbed a much greater power: the ability to strike down both old and new laws, and without any possibility of legislative override. For argument's sake, suppose such an arrangement is a good idea. That still does not begin to answer whether it's allowed by the Constitution or not.
Agreed, I did not mean to suggest that the Council of Revision was directly analogous to living constitutionalism (an additional very big difference is that it would not have been able to strike state laws: Madison wanted Congress, not the Council, to have this power through his proposed "negative" on state laws). Still, the Council proposal does show that an additional, non-democratic, policy-based hurdle for legislation isn't completely novel.
As to the second point, I agree also: the Council of Revision proposal — and even more so the negative-on-state-laws proposal — strongly indicate that the Constitution as adopted did not contemplate wide-ranging judicial power to invalidate laws on policy grounds. If the Convention would not even accept the Council and the negative, it seems plain that they did not think they were granting an wider power. (But living constitutionalists would presumably rely on subsequent practice, rather than original meaning, to provide legitimacy for their approach).
Posted at 6:05 AM