Thursday, September 30, 2004

U.S. Supreme Court Justice Decries Judicial Activism

Scalia decries judicial activism in Harvard talk
By Douglas Belkin, Globe Staff | September 29, 2004

CAMBRIDGE -- Supreme Court Justice Antonin Scalia, one of the high court's most conservative justices, told a packed forum in one of the nation's most liberal cities that the courts have strayed into a realm of judicial activism that is ultimately bad for democracy.
In a wide-ranging talk at Harvard's Kennedy School of Government last night, Scalia told about 400 students that issues such as capital punishment, abortion, and physician-assisted suicide should be matters for voters, not judges.
"What I am questioning is the propriety, indeed the sanity, of having value-laden decisions such as these made for the entire society . . . by judges," Scalia said.
The Constitution, he said, should not be a "living document" open to interpretation by judges.
"It is blindingly clear that judges have no better capacity than the rest of us to determine what is moral," said Scalia, who was appointed to the high court in 1986.
In his opening remarks, Scalia never mentioned the issue of gay marriage and the Massachusetts Supreme Judicial Court's decision to legalize same-sex marriage. When asked about a constitutional amendment to ban gay marriages, Scalia skirted the question, saying it wouldn't be wise for him to comment.
Harvard students peppered him with questions about positive changes court decisions have ushered into American society.
One student asked about Brown v. Board of Education, referring to the decision that outlawed school segregation. Scalia said he would have agreed with that decision on the grounds that the Constitution guaranteed equal protection, but not because it was the moral thing to do.
"I will stipulate that by going beyond what it should be doing the court can do some good stuff, so can a king," Scalia said. "But that doesn't prove it's good for a democratic system as a whole. A stopped clock is right twice a day."
A woman who identified herself as an undergraduate student asked if the politicization of the court was hastened by the company justices kept. The remark was a reference to a duck hunting trip Scalia took with Vice President Dick Cheney earlier this year, before the court was to rule on a case involving whether the vice president should be forced to reveal the details of his private energy task force meetings.
Scalia said there is no precedent for a judge recusing himself "because of friendship with a public official when the suit against the public official is not in his personal capacity, when he's named just because he's the head of an agency."
Scalia said he made the decision to stay on the case based on past practice. "Not a single case was brought up in the motion to recuse, it was based on nothing other than newspaper editorials, and I'll be doggone if I'm to get hounded off the case by newspaper editorials."