One justice's vision of role of the courts

His comments come at a time when Washington is rife with speculation about Chief Justice William Rehnquist's ongoing battle with cancer and the potential for a Supreme Court vacancy.

Scalia was once considered a prime candidate for chief justice. But some analysts say the highly partisan nature of the Senate confirmation process and the intense focus on abortion by Senate Democrats make it unlikely that he could be elevated to the top job.

Other than offering the anecdote of the fundraising letter, Scalia did not mention the chief-justice issue during his lecture. Instead, he focused on what he sees as the problem of judges becoming involved in issues that he believes have no place in a court of law.

He offered examples from the US Supreme Court - abortion, gay rights, the death penalty, gender equality at military schools, and assisted suicide.

Such cases highlight competing visions of the scope of a judge's power to discover new constitutional rights or expand existing rights. Scalia believes judges must look to the text of a disputed constitutional provision and interpret it based on the intent of the drafters. To Scalia, a static constitution is a protection of American liberty because it sharply limits a judge's ability to amend the Constitution by mere judicial fiat.

His is a minority view. Many more judges in the US and overseas have adopted the approach that constitutions are living documents, open to contemporary interpretation to address modern concerns. Many see their job as working to achieve a measure of justice.

Scalia calls it "the power to do good." He denounces it as an open invitation to judicial activism.

"Under a regime of static law, it was not difficult to decide whether under the American Constitution there was a right to abortion or to homosexual conduct or to assisted suicide," he said. "When the Constitution was decided, all those acts were criminal throughout the United States and remained so for several centuries. There was no credible argument that the Constitution made those laws invalid."

"Of course, society remained free to decriminalize those acts [through legislation], as many states have," he added. "But under a static Constitution, judges could not do so."

The issue is not new. Every Republican presidential candidate since Richard Nixon has promised to appoint justices who believe in judicial restraint, Scalia says. "And every Democratic candidate since Michael Dukakis has promised to appoint justices who will uphold Roe v. Wade, which is synonymous with judicial activism."

He added that each year the conflict over the future of the court has grown more intense and more political. "I am not happy about the intrusion of politics into the judicial appointment process," Scalia said. "Frankly, however, I prefer it to the alternative, which is government by judicial aristocracy."

Page: 1 | 2