Justice Antonin Scalia has been traveling the country this week to promote his new book on legal argument. While speaking to students at Roger Williams University School of Law and Fairfax County high schools, Scalia attempted to explain the basis for his judicial philosophy, which he refers to as an “originalist” view, and criticized the current process of judicial confirmations in the Senate.
Scalia mocked recent Senate battles over judicial nominees, likening them to “mini constitutional convention[s],” and noted that while he received 98 votes for his seat on the Supreme Court in 1986, he doubted that he could even “get 60 votes today.” Ahem. Not to sound callous…but if we had our way, he wouldn’t even have be able to dig up that many. Justice Scalia has been one of the most reliably conservative voices the Supreme Court has ever had.
In his attempt to make a case for his philosophy of constitutional originalism, the 72-year-old justice rejected the view that the Constitution is a “living document,” arguing that “Reading new stuff into the Constitution will bring you what a constitution always brings – rigidity.” He opined, “You don’t need a constitution for flexibility. All you need is a legislature and a ballot box.” When students pushed back and suggested that judges should intervene when legislatures are slow to resolve tough social or moral dilemmas, Scalia was dismissive. “I am not a moralist-in-chief…[nor an] ayatollah who is supposed to tell America what its morality should be.”
It seems to us that those who espouse this so-called “originalist” view of the Constitution are in fact just being indolent. With one vague philosophical declaration, they have conveniently freed themselves of any responsibility to make this 200-year-old document applicable to the complexities of modern life. For evidence, one need only look as far as the Indiana Voter-ID case which recently came before the Supreme Court. Everyone acknowledges that the Constitution guarantees the right to vote, but judging from the questions Scalia asked during oral arguments, he is not inclined to extend this right much beyond the hypothetical. His views seem to imply that just because the government has to let you vote doesn’t mean it has to make it easy for you to do so.
Movement conservatives like Justice Scalia frequently throw around terms like "judicial restraint" and decry so-called "activist judges" who "legislate from the bench,” as if to minimize the Third Branch's authority. But they use these catch phrases to distract from their own agenda, which consists of overturning settled precedents when they conflict with desired results, restricting access to the courts, and promoting the interests of businesses over consumer protections. This ultra-conservative agenda is precisely why Alliance for Justice fights as hard as it does – not just to keep judges in the mold of Antonin Scalia off the bench, but to advance a vision of the law which champions fairness, justice and equality for all.