Two stories appear in the news today that highlight more than anything else the differences between the judicial philosophies of Antonin Scalia, the most conservative member of the Supreme Court, and Ruth Bader Ginsburg, the most liberal member of the Court.
First, Justice Scalia spoke yesterday in Boston about judges who impose their morality on the law.
BOSTON –U.S. Supreme Court Justice Antonin Scalia railed against the era of the “judge-moralist,” saying judges are no better qualified than “Joe Sixpack” to decide moral questions such as abortion and gay marriage.
“Anyone who thinks the country’s most prominent lawyers reflect the views of the people needs a reality check,” he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.
The 70-year-old justice said the public, through elected Legislatures — not the courts — should decide watershed questions such as the legality of abortion.
When it comes to matters that are clearly not discussed in the Constitution, Scalia is absolutely right. Instead of legislation by judicial fiat, why shouldn’t the will of the people have some say over whether a new right should be granted, whether we’re talking about abortion, or gay marriage ? As Scalia points out, the Constitution has a mechanism for dealing with the alteration of the nation’s founding documents:
Scalia decried his own court’s recent overturning of a state anti-sodomy law, joking that he personally believes “sexual orgies eliminate tension and ought to be encouraged,” but said a panel of judges is not inherently qualified to determine the morality of such behavior.
He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.
Precisely. This is why its wrong when, for example, the Supreme Court of Massachusetts suddenly decides, after 2,000 years of western civilization that argued to the contrary, that homosexuals have a fundamental right to marry. If the people of Massachusetts want to change the definition of marriage, it should be by law or Constitutional amendment, not judicial fiat.
Scalia also rejects the idea that there is such a thing as a moderate when it comes to Constitutional interpretation:
“What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?” he said.
Take that Kennedy and Souter.
At the other end of the spectrum, we have Ruth Bader Ginsburg, who recently gave a speech in South Africa on the issue of the Court’s use of foreign law in its decision making. Here are a few choice excerpts from the speech:
Foreign opinions are not authoritative; they set no binding precedent for the U.S. judge. But they can add to the store of knowledge relevant to the solution of trying questions. Yes, we should approach foreign legal materials with sensitivity to our differences, deficiencies, and imperfect understanding, but imperfection, I believe, should not lead us to abandon the effort to learn what we can from the experience and good thinking foreign sources may convey.
In other words, since we’ve already abandoned the idea that the Constitution means what it says, nothing more and nothing less, there really isn’t a problem with considering as persuasive authorities from a legal tradition completely foreign to America’s traditions of individual liberty and limited government.
The U.S. Constitution, Justice Scalia has remarked, contains no instruction resembling South Africa’s Section 39 prescription. So U.S. courts, he thinks, have no warrant from our fundamental instrument of government to consider foreign law. I would demur to that observation. Judges in the United States are free to consult all manner of commentary – Restatements, Treatises, what law professors or even law students write copiously in law reviews, for example. If we can consult those writings, why not the analysis of a question similar to the one we confront contained in an opinion of the Supreme Court of Canada, the Constitutional Court of South Africa, the German Constitutional Court, or the European Court of Human Rights?
Well, how about because those restatements, treatise, and law review articles are based on American law and the American Constitution ? To equate a judge consulting the Restatement of Contracts with that same judge consulting the decisions of, say, the German Constitutional Court is, fundamentally, absurd. It does, however, reveal the true nature of Ginsburg’s judicial philosophy. For her, the Constitution, American law, and various commentaries on American law are merely persuasive authorities to be relied upon if they are in line with her predetermined beliefs. The fact that those beliefs may be inconsistent with the Constitution itself apparently doesn’t matter.
There’s more to Ginsburg’s speech, including a despicable attempt to equate those who believe in judicial restraint and oppose the use of foreign law in judicial decision making with Chief Justice Roger Taney, architect of the Dred Scott decision. On that point, suffice it to say that Dred Scott is not an example of judicial restraint or original intent.
More coverage of Ginsburg’s speech in the Washington Post.
There’s more on all of this at Michelle Malkin, Power Line, Right Wing Nut House, Ace of Spades HQ, The Anchoress, Crazy Politicos Rantings, The Volokh Conspiracy, and Stop the ACLU
Linked with today’s Beltway Traffic Jam and Don Surber’s Best of Thursday.
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