One justice's vision of role of the courts
During the presidential campaign, Supreme Court Justice Antonin Scalia received a strange letter in his home mailbox.
It was a fundraising flier from Democratic strategist James Carville. The appeal invoked an issue apparently thought to be so frightening that it would prompt recipients to fork over massive amounts of money to the Kerry campaign.
The "terrifying" message came with the headline: "What Would You Think of CHIEF JUSTICE Scalia?"
When Scalia related the story at a recent gathering of the conservative Federalist Society here in Washington, the audience erupted into sustained and thunderous cheers and applause.
Not exactly the reaction Mr. Carville intended. But the incident sharply illustrates the gulf that exists between conservatives and liberals over the future direction of the US Supreme Court.
While Scalia is viewed by many liberals as a right-wing ideologue bent on overturning Roe v. Wade and other progressive decisions they favor, he enjoys a far more exalted status among a growing cadre of conservative law students, lawyers, professors, and judges. They see him as an intrepid legal warrior seeking to put rules back into the rule of law.
His is an approach to law that seeks to limit the ability of judges to use judicial power to impose their own value judgments and policy preferences on the nation. It is a form of judicial restraint embraced by President Bush, who has said he will seek to appoint future Supreme Court justices in the mold of Scalia and Clarence Thomas.
What might that mean for the high court and the future of American jurisprudence?
In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges.
And he warns that the high court's willingness to take up moral questions that are still open to debate within society will increasingly mire the court in a political morass. It is a trend that has made judicial nominees targets in a bitterly partisan Senate confirmation process featuring character assassination and filibusters.
"One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court," Scalia told his Federalist Society audience, which included many individuals thought to be on a White House shortlist for a high-court post.
"The lesson is, in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy," he said. "If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable."
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