Justice Scalia has been very active lately on the public speaking circuit. In addition to his debate with Nadine Strossen, he also made an appearance, along with Justice Alito, at a conference sponsored by the National Italian American Foundation. The AP reported on that talk and something jumped out at me, because he made a very similar statement in his debate with Strossen and I find it odd. In talking about judicial independence, he said that the court puts its own independence at risk when it wades into controversial issues:
“The court could have said, ‘No, thank you.’ The court 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 … you know, all the social issues the courts are now taking.”
Scalia said courts didn’t use to decide social issues like that.
“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.”
Frankly, I think this is nonsense. The courts have always been involved in controversial political and social issues and always taken a great deal of flak for it; this is nothing new. When the Supreme Court issued the Dred Scot ruling, it was at the peak of political and social controversy over slavery, so much so that the civil war was on the verge of breaking out. Likewise with the various rulings striking down the Jim Crow laws in the South in the midst of the civil rights movement.
This was a time of maximum controversy on those issues, when political and social tension over them was at an all time high. Does Scalia really think that the courts should have just stayed out of those issues because they were controversial and let legislatures – the ones who created those discriminatory laws in the first place – do whatever they wanted? Would he say that the court risked its judicial independence by going against the will of so much of the south at the time?
I know I keep going back to this case, but I have yet to hear a coherent answer from a judicial conservative on it – Loving v Virginia was also a highly controversial issue at the time. And the Constitution says nothing about marriage at all, much less interracial marriage (just as it says nothing about gay marriage today). Indeed, the framers of the 14th amendment made clear that it was not intended to overturn such laws. Does Scalia think that the court should have refused to rule in the case, or upheld laws against interracial marriage? If he applies his arguments consistently, he must. I doubt, however, that he would. And the fact that one cannot apply one’s arguments consistently clearly suggests flaws in those arguments.