Justice Scalia and Me, Part II.
John Eastman, a former Supreme Court clerk and current Chapman law prof, introduced Justice Antonin Scalia for Monday night's Madison Lecture at Chapman.
In the introduction, Prof. Eastman read passages from Justice Scalia's opinions, many of which were in Scalia Dissents. Eastman then remarked ruefully that almost all of them were dissents.
"Dissents Are More Fun"
Justice Scalia acknowledged that he had often written dissents, but noted: "Dissents are more fun."
He said that when one writes the majority opinion, some of the best material is cut out and left on the cutting room floor.
In the first part of the speech, Justice Scalia reviewed some history. He said that the federal government's "alphabet agencies", board and commissions demonstrated an obsession with the "expert." This obsession led to a "headless fourth branch".
Justice Scalia observed that it is impossible to take politics out of policy decisions, so this "headless branch" of experts were making political choices, through their policy decisions.
He said that this belief in the "expert" has transmuted into "judge moralists" occupying the bench, who are deciding political questions, such as abortion, suicide and gay marriage, couched in legal language.
Then, Justice Scalia discussed natural law. He said: "I believe in natural law." However, he confessed that his view of natural law differs from others. He said that there is no moral expert to answer these questions.
Justice Scalia asked, "Who in a democratic society has the power to determine what the natural law is?"
He said that divining natural law is often a matter of debate and persuasion. He rejected that there scientifically definable answers to such questions.
Justice Scalia condemned modern society as one "addicted to abstract morality". He noted that it is a dangerous practice when reflected in documents of a nation state.
He then upbraided the European Court of Human Rights, lampooning its decision finding a right of privacy to engage in orgies of at least five (5) individuals, who even videotaped their exploits. He said that Court's privacy rule would seemingly protect a group of somewhere between five and the number of people that could fill the coliseum.
Justice Scalia observed that there is nothing in law school or private practice that would qualify him to deal with abortion or assisted suicide.
He said, "My Court has invented the concept of a living constitution".
Justice Scalia criticized Roe v. Wade because while it purported that it was unnecessary to decide when human life begins, he that that question is "central".
Alluding to the current judicial confirmation process in the Senate, "One is tempted to shield his eyes from the upcoming spectacle".
He lamented that "originalists like me cannot get 60 votes to sit on a circuit court" today.
In a line that produced one of the biggest laughs, Justice Scalia wondered what a "moderate" interpretation of the constitution would look like. "Is that halfway between what it says and what one would like it to say?"
Justice Scalia reported that Democratic strategist and fundraiser James Carville (ostensibly in error) sent him a fundraising letter during the last election cycle with the envelope emblazoned with the words, "Can you imagine a Chief Justice Scalia?"
Justice Scalia said he was not happy with the politicization of the judicial confirmation process, but he asserted that it was inevitable if judges make moral judgments.
Justice Scalia concluded that he preferred the politicization to a judicial aristocracy.
Labels: Antonin Scalia