In a speech to lawyers gathered June 21 in AshevilleU.S. Supreme Court Justice Antonin Scalia decried judicial activism. The keynote speaker at the 2013 annual meeting of the North Carolina Bar Association, he told the hundreds in attendance that their law degrees do not qualify them to determine the moral values of society.
Appointed by President Ronald Reagan in 1986, Scalia is the longest-serving justice on the Supreme Court. He's also built a reputation as the intellectual anchor of the court's conservative wing. A self-described "originalist," he's advocated for strict interpretation of constitutional principles throughout his career.
"I hate the phrase 'living constitution,'" he told the crowd at the Grove Park Inn. He lauded bygone years when "laws used to be seen as static."
For the majority of his 30-minute remarks, Scalia read excerpts from a previously published essay he penned, titled "Mullahs of the West: Judges as Moral Arbiters." In it, he argues that society's moral decisions and values of what is right and wrong shouldn't be left to a "judicial aristocracy" of unelected judges.
His Harvard law degree does not qualify him to decide if such contentious issues as abortion, the death penalty, assisted suicide or sexual preference are moral for others, he said.
On many hard questions facing society, there's "no scientific right-or-wrong answers," he maintained. "Lawyers wouldn't know those answers more than anyone else. Judges have no greater capacity than the rest of us to determine what's moral." Instead, he said he prefers decisions and policies to be set by elected officials who are held accountable for their actions by the voters they represent.
"The people, unlike the courts, can even compromise on these issues," he noted. The idea of a "moderate judge doesn't make sense," he said, because their job is to strictly interpret the law. "Moderate policy makers make sense." Although Scalia said he's "not happy about the intrusion of politics into the [judicial] appointment process," he said it was "preferable to a judicial aristocracy that goes unchecked."
"Politics is inherently involved in determining human rights and values," he argued.
At the end of his speech, Scalia took a few questions from the audience. One attendee seemed to stump Scalia with a question he had never before considered. Regarding his criticism of unelected judges making decisions better left to policy makers, the attendee asked Scalia if he thinks elected judges – such as those serving in district and state courts – have more authority to weigh in on such issues.
"I feel better about elected judges deciding moral questions," he responded. "In one sense, the people get what they deserve." However, he seemed to be mulling the idea on stage as he spoke, adding: "It's better than appointed judges doing it, but I still have a fundamental problem with it."
Another attendee asked him if the judicial branch has a responsibility to govern when the legislative and executive branches are too dysfunctional to get anything done. He dismissed the idea, arguing it's a "very poor excuse to say, 'Well, if we don't do it, no one will.'"
"I love gridlock," he added. "The framers loved gridlock. They created a system of gridlock."
Scalia did not offer any hints about major rulings the Supreme Court is expected to hand down soon on affirmative action, gay marriage and voting rights.
He did, however, reach a verdict on Asheville, pronouncing it a "beautiful" city. This was his second visit to the area, he reported. He also expressed a special affinity for the state, noting that he owns a vacation home on the Outer Banks.