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