A couple of weeks ago, at an ACLU debate, Justice Scalia listed numerous areas where, according to him, the Constitution gives courts no power to protect individuals from politicians who authorize government intrusion into their personal affairs. On Saturday, this time joined by Justice Alito, he made similar arguments at a National Italian American Foundation panel. True to form, Justice Scalia said that courts have no business addressing "social issues" on which the Constitution is "silent." He specifically identified abortion and assisted suicide as two such issues. The more courts decide to wade into these subjects, Justice Scalia asserted, the less they are entitled to the independence the Framers gave them.
Lots to unpack there, but nothing new. We've got one question, though: when Justice Scalia talks about what courts shouldn't be deciding, and what they must leave up to politicians, why is it that he always seems to draw the line at so-called "social issues" in his public speeches? There are, after all, plenty of issues on which the Constitution is far from explicit -- or "silent," as he would say -- yet the Court insists on flexing its muscles when confronted with them. In fact, on many of those issues, it is Justice Scalia himself who is among the most forceful advocates for judicial intervention. Justice Scalia maintains, for example, that:
- the Constitution prohibited the state of Florida from conducting a ballot recount in the 2000 presidential election
- the Fourteenth Amendment prohibits affirmative action
- the Fifth Amendment's takings clause requires the government to compensate property owners when land use regulations diminish, but don't extinguish, the value of their property
- the First Amendment prohibits laws that limit campaign contributions and commercial advertising
- Congress's power to enforce the Fourteenth Amendment's equality guarantees doesn't authorize legislation targeting gender, disability or national origin discrimination and is limited to authorizing legislation that remedies a history of demonstrable, state-sponsored racial discrimination.
Funny, we can't find any of these things in text of the Constitution. Indeed, one is also hard-pressed to say they're consistent with the document's original understanding, which Justice Scalia claims to follow.
Seems to us that by telling courts to steer clear of only "social issues" in his public comments, Justice Scalia is artificially limiting the universe of areas where he personally wants the court to butt out, but is at the same time purposefully -- but much more quietly -- leaving plenty of room for areas where he personally wants the court to butt in. University of Chicago law professor Cass Sunstein has called this "a political program in legal dress."
We disagree with Justice Scalia on a lot of things. We nevertheless firmly believe that that isn't an argument for making him, or the courts, less independent. If only he would have the humility to concede that his jurisprudential opponents are working in good faith to get the law right, and that they don't deserve any less independence merely because they're interpreting some aspects of the Constitution in ways he doesn't like. Because by repeatedly condemning the Court for "addressing social issues" (i.e., giving meaning to the liberty guarantees of the due process clause), and even worse, by saying that the Court's opinions disentitle it to judicial independence, he's sounding a lot like the James Dobsons and Pat Robertsons of the world. As a result, he’s encouraging them.