Monday, February 15, 2016

Justice Antonin Scalia

A judicial activist?

By James T. Carney

The essence of judicial conservatism is a recognition of the truth of Churchill’s aphorism: “Democracy is the worst form of government – except for any other which has been tried from time to time.” The U.S. Constitution is the foundation upon which our democracy rests. In interpreting the Constitution, one should discern and implement the intent of the founding fathers and one should apply the doctrine of stare decisis (i.e., once decided, always decided) – except under two circumstances.
    One circumstance is when action is needed to preserve the democratic system. The Supreme Court’s decision in Baker v. Carr (which ruled that in establishing legislative districts, the Constitution required adherence to the principle of one man, one vote and prohibited legislative districts of unequal population sizes) was necessary to preserve democracy because the existence of unequal legislative districts made reform of the same almost impossible. Similarly, a decision in the future to prohibit gerrymandering would be justified in the same manner.
    The second circumstance is when action is needed to protect the political rights of minorities. Thus, the decision in Brown v. Board of Education (which struck down the existence of segregated school systems) was justified because segregation inevitably condemned blacks to inferior education, with a resulting detrimental impact on their political rights.
    Critics of judicial activism say that activists use the court system to implement policies that are not enshrined in the Constitution and make decisions that overturn past precedent to enact their own elitist program. Roe v. Wade, viewed from the standpoint of strict construction, is a fairy tale. That is not to say that abortion should not be legal. I know a number of individuals who should have been aborted. Rather, its legalization or non-legalization should – in a democracy – be decided by the people and their representatives. One reason for the intense opposition to Roe v. Wade is the recognition that its decision was made by unelected judges who took advantage of their positions to legislate social policy – a policy that was then opposed by a significant number – and perhaps a majority – of citizens. The decision in Roe v. Wade and the action of Ted Kennedy in opposing the nomination of Bork to the Supreme Court on political grounds have led to the politicization of the Supreme Court – with disastrous results, both for the Court and for democracy.

Justice Antonin Scalia
(March 11, 1936 – February 13, 2016)
Now, Justice Antonin Scalia has been considered the greatest champion of the “original intent” approach to the Constitution and has often criticized – generally scathingly – decisions by liberal activist judges that ignored the intent of the founding fathers. Unfortunately, Justice Scalia has proved to be as much of a judicial activist on the conservative side as have his opponents on the liberal side. For example, Justice Scalia helped form the majority of the Court that overruled earlier Supreme Court decisions when it decided Citizens United v. Federal Election Commission, holding that the government could not constitutionally regulate the amount of money given by corporations in political campaigns.
    And, in Heller v. District of Columbia, Justice Scalia overturned decades of Supreme Court precedent to hold that the Second Amendment protected citizens’ rights to hold guns without being part of a state militia. These decisions – and their destructive aftermath – mark Justice Scalia, along with liberal Justice William O. Douglas, as one of the most prominent judicial activists to sit on the Supreme Court.

Copyright © 2016 by James T. Carney


  1. I have neither the time nor the inclination to write anything very scholarly about Scalia. I think his insistence that the Constitution should be read as originally written was a smoke screen for a very conservative agenda. His opinion regarding the second amendment is an example of problems you get into with originalism. Should the "right of the people to bear arms'" be read in light of the armaments of 1788 or the 21st Century? In other words, is originality to be determined in the context of the date of the writing of the amendment or in today's context. If you rule that the words are simply the words, you then import into your ruling the concept of 21st-Century armaments. In my opinion, you can't avoid context. I think words can only be understood in context of the times as well as the writing itself. But what do I know? I'm only a retired trial judge from Tulare County.

  2. Being just a lay person I say this not as a point of law but as a citizen looking at judges who in another profession should be locked up. You should not hunt, fish and drink with people who benefit from discussions that are made by the court you set upon. However, the court does it over and over. When asked, Scalia said he decides what is illegal or not. I still would like to know how they elected G.W. Bush.

  3. Readers should be aware that the esteemed judge Richard Posner (see wiki) wrote a brilliant article on Antonin Scalia's method of textual originalism in the New Republic on August 24, 2012, entitled "The incoherence of Antonin Scalia".
    This is available free for the general public.
    You should read it.
    That textual originalism is a smokescreen for Scalia judging in favor of his conservative issues is also clearly stated.

  4. "Judicial activism" is very much in the eye of the beholder. Back in the day many of us considered Bill Douglas' position to be that the Bill of Rights meant exactly what it said, the opinions of the red baiters notwithstanding. For that reason among others he was perhaps the only political hero I ever had, and I still consider him a strict interpreter of the Constitution. Unlike Scalia. Thank god he's dead.
    Thanks for the pointer, Rolf. I'll certainly read that article.