Scalia addresses North Carolina attorneys


Justice Antonin Scalia

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.”






  1. Rev. Carl Johnson

    June 21, 2013 at 3:25 pm

    “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.” – Scalia

    I would argue that this is the only way Scalia and Thomas got onto the court. Moreover, Scalia says, unequivocally, that the Constitution was designed to prevent the majority from doing what it wanted to do. Yet, he continues to side with the majority and does little to protect the minority.

  2. Doug

    June 21, 2013 at 3:59 pm

    The man makes a lot of sense. We have handed a lot of the duties that citizens should be performing by handing such a political process to judges rather than taking the time and thought to ammend or not ammend the Constitution.

  3. Adam Linker

    June 21, 2013 at 4:01 pm

    Unfortunately, judges also make shockingly bad historians. They are often completely wrong about what legislators intended when certain laws were passed. Trying to worm your way into the head of a 18th Century elected official is not a good path to sound jurisprudence.

  4. Heather

    June 21, 2013 at 4:34 pm

    He has a point about moral decisions, not quite in the same context, but it’s very true these men would have to actually be moral, in the first place, to have the capacity to make moral decisions. It’s clear a court majority is capable of gross immorality, nothing left to second guess on that count. Morality is best not to be expected of political animals and shills, who are as likely to walk around the man bleeding in the road, just to keep getting invited to cocktail parties.

  5. George Greene

    June 21, 2013 at 5:15 pm

    He’s ignorant, stupid, and hateful. The WHOLE POINT about morality, right, and wrong, is that it is right (or wrong) EVEN if the majority thinks otherwise. The Supreme Court is AN INHERENTLY counter-majoritarian institution. More to the point, the Supreme Court for the most part IS NOT being asked to decide moral issues: it is being asked to decide whether state or federal laws do or do NOT comport with THE CONSTITUTION. That is a textual and logical question, NOT a moral one, MOST of the time!
    Of course, given that some clauses of the constitution (specifically the equal protection clause) are replete with moral implications, it can be completely immoral for a judge to get it WRONG.
    But it is almost never immoral for him to get it right.
    The problem is that we have just had too many judges who really were just evil and really
    thought it was OK to wax pretextual about which privileges and immunities citizens of the US did NOT have.

  6. George Greene

    June 21, 2013 at 5:17 pm

    I can’t believe he alleged that it fails to prevent the majority from doing what it wants to do.
    HE IS ALWAYS doing what the majority wants done! E.G. WHEN HE ATTACKED THE VOTING
    RIGHTS ACT AS SOMETHING THAT CONGRESS WOULD NEVER REPEAL. The majority of the people in the affected jurisdictions DO want it repealed! THAT’S PRECISELY WHY IT’S NEEDED!

  7. RJ

    June 21, 2013 at 5:27 pm

    Which Cconstitution do you recommend ammending, Doug, Nnorth Ccarolina’s or the the Uunited Sstates’? Which ppart of that Cconstitution?

    Another lil thing that leads me to believe that D is neither an accountant nor an adult.

  8. Anthony

    June 21, 2013 at 7:07 pm

    Sounds like a preview to a dissent in the same sex marriage cases next week.

    The problem with his view is that you are basically applying an 18th century viewpoint to a 21st century world.

  9. david esmay

    June 21, 2013 at 7:47 pm

    Antonin Scalia, the Roger B. Taney of our time. Scalia has done nothing more than use his religious views to moralize his entir tenure on the court. Someone once asked Reagan where he got the idea to nominate Scalia and he said,” It came to me one October weekend at the ranch while turning back the clocks”.

  10. Doug

    June 21, 2013 at 8:42 pm

    I am not saying we need to ammend the CCCConstitution. But we need to use that more as a vehicle for chchcchange. If the dddddocument is supposed to be living and bbbbreathing we need to take the difficult road of having a state by state debate on issues rather than have some liberal or conservative leaning, unelected judge decide on the fate of our country and as Adam said try to read the minds of the founding fathers. There is a way to enact change in the document….it is difficult and if 67% of the country feels there is a need to enact the change then so be it.

    So what is not adult about my comment? You must be defensive because what i said rings true. Are you in line with having judges with agendas decide what the 18th century people wanted? Even when they subvert the will of the people? I am surprised you like that the judges have this much power…especially when your causes are on the wrong side of the court in most modern cases….and when you guys complain about the court all the time. Interesting.

  11. RJ

    June 22, 2013 at 5:31 am

    I’m just pointing out that you can’t spell the word that is the center of your argument. It’d be like me lecturing you on tax free exxchanges.

    And for the record, I think Scalia’s brand of Originalism is dumb even if he were to apply it consistently. It’s just a figleaf for his prejudices. I do not think conducting a seance with the Founders is how judges should or actually do decide cases.

    Also for the record, “we” did not give the judiciary the right to interpret the US Constitution. Instead, the Marbury court took it in defiance of the Jefferson White House. This is one of those tensions built into our system, like it or not. It is often a judge’s job to “subvert” the majority. It’s not a matter of whether I like it or not; it makes as much sense to get mad at an honest judge doing her job as it does to get mad at a dark cloud for producing rain. Emphasis on honest, which Scalia is not.

  12. Gene Hoglan

    June 23, 2013 at 1:38 pm

    Sounds like good news for the pro-equality crowd. Scalia typically does these pity potty tours when things didn’t go his way on big cases.

  13. Doug

    June 24, 2013 at 1:33 pm

    RJ, thanks for pointing it out. That is certainly the crux of my argument, that spell checker is an integral part of judicial work. Way to stay on point.

  14. Doug

    June 24, 2013 at 1:35 pm

    And RJ I am glad you agree. The “we” did give the power to them whether you agree or not. But it rather than read the tea leaves, we need to take more time and ammend the Constitution rather than have unelected judges mold the document.

  15. RJ

    June 24, 2013 at 4:11 pm

    Doug: Marbury v. Madison was decided by the US Supreme Court in 1803. How did “we” give the USSC this power when the Court took it 210 years ago? What is there to agree about? Do you think in the English language or just read and write in it?

  16. Doug

    June 25, 2013 at 9:56 am

    Uhh. lets see we had constitutional conventions to sign the states up for this thing we call the United States. You know setting up the boundaries of the branches. Then setting up the method to ammend the constitution, which; as the legal scholar you already know; takes the SC out of any argument because the issue is then in the document.

  17. RJ

    June 25, 2013 at 10:00 am

    Wikipedia probably has a nice entry on Marbury. I commend it to you.

  18. Doug

    June 25, 2013 at 10:06 am

    And a cursory “layman review” determines that although Marbury was the first major case of judicial review. The courts had already been designated the duty in the Constitution and had to lesser extents exercised the duty.


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