In remarks styled “Mullahs of the West: Judges as Moral Arbiters,” U.S. Supreme Court Justice Antonin Scalia today told members of the North Carolina Bar Association, gathered in Asheville for their annual meeting, that judges have been increasingly asked to decide the moral issues of our time — a role they are ill-equipped to perform and one they should be hesitant to accept.
“Whether a woman has a natural right to an abortion, whether society has a right to take a man’s life for his crimes, whether a human being has a right to take his own life and to have the assistance of others in doing so – these and many similar questions involve basic morality,” Scalia said.
But judges are in no better position than anyone else to determine what is moral, he added.
“In a democratic society, it is the people, not unelected judges, who should be debating and resolving these issues. There is no more reason to take these issues away from the people than there is on matters of economic policy, because there is no expert to decide them.”
Scalia blamed this “addiction to abstract moralizing” on the court’s move from treating the Constitution as a static document to a living one that requires a continual adjustment to societal expectations.
“Until relatively recently, the meaning of laws, including fundamental laws such as constitutions, was thought to be static,” he said. “What vague provisions such as a right to respect for private life or a right to equal protection meant could readily be determined in most areas from the practices that existed at the time it was enacted. And only the people could bring about change — by amending the Constitution (women’s right to vote, for example). With a living constitution, it falls upon judges to interpret its provisions with regard to society’s changing standards of decency.”
That moralizing has crept into the judicial selection process, which has become increasingly politicized, he added.
“Instead of looking for qualified people, we are looking for those who agree with us as to what the annually-revised Constitution should say. And once we let that happen, the Constitution ceases to do what it was designed to do, and that is to prevent the majority from doing what they want to do.”