By John Heilprin
Monday, October 23, 2006
Deeply controversial issues such as abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, according to Supreme Court Justice Antonin Scalia.
Scalia, during a panel Saturday on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."
He added, "The more your courts become policymakers, the less sense it makes to have them entirely independent."
Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.
"Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."
"The court could have said, 'No, thank you.' The court could have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,' " Scalia said. "It could have said the same thing about suicide, it could have said the same thing about . . . all the social issues the courts are now taking."
Scalia said that in the past, courts did not decide social issues. "It is part of the new philosophy of the Constitution," he said. "And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."
Justice Samuel A. Alito Jr., the newest member of the Supreme Court, agreed that "the same thing exists, but to a lesser degree, with the lower courts."
About 400 people turned out at the Hilton Washington for the talk. William S. Sessions, a former FBI director and federal judge, and Lynn A. Battaglia, a Maryland appeals court judge, also participated in the discussion.
Scalia expressed disdain for the news media and the general reading public, and suggested that together they condone inaccurate portrayals of federal judges and courts.
"The press is never going to report judicial opinions accurately," he said.
"They're just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that's all you're going to get in a press report, and you can't blame them, you can't blame them. Because nobody would read it if you went into the details of the law that the court has to resolve. So you can't judge your judges on the basis of what you read in the press."
Alito complained that people understand the courts through a news media that typically oversimplifies and sensationalizes. He said people's ability to globally amplify their comments about judges and their opinions on the Internet takes a toll on the judiciary.
"This is not just like somebody handing out a leaflet in the past, where a small number of people can see this," he said. "This is available to the world. . . . It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career."
Scalia chimed in: "I think what Justice Alito says about being careful about, you know . . . be nice to your judge. Take a judge to lunch. No, you can't do that."
Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."