Judges should interpret laws, not moralize

Supreme Court Justice Antonin Scalia, delivering the third annual Madison Lecture at Chapman University’s law school Monday night, offered at least a partial explanation for why the upcoming confirmation hearings for Judge John Roberts to join him on the high court are likely to be more heated than might seem justified by Judge Roberts’ somewhat sparse but mostly uncontroversial record.

Supreme Court justices, Justice Scalia contends, have been, for the past 50 years or so, the country’s moralizers-in-chief.

And since there is wide and deep-seated disagreement over certain moral questions, having judges make such decisions backed by the force of law leads to social division — and to groups convinced that the very survival of their right to hold certain moral positions depends on influencing the judicial confirmation process.

Justice Scalia noted that during that first half of the past century the American political system was obsessed with the capacity of experts to make economic and political decisions for everyone. An array of regulatory agencies was created to put decisions about transportation, communications, drugs, securities and business practices into the hands of presumed experts — and take them out of the hands of politicians and the people who elect them.

Justice Scalia believes it is “fair to say the project was a grand failure,” and we agree. Regulatory agencies are no longer fashionable and a couple have even been abolished.

The trouble is, faith in experts has been replaced by faith in judge/moralists.

For the last 50 years or so, Justice Scalia maintains, judges, especially on the Supreme Court, have taken it upon themselves to decide moral issues that should be left to the political process or to individual citizens. The U.S. Constitution, for example, says a lot of things, but it doesn’t say anything about abortion, let alone in which trimester it should be permitted.

The country would be better off — and confirmation proceedings less fiery — if judges stuck to trying to figure out what the Constitution’s provisions meant when they were ratified and then applying them. Judges are at least trained in such pursuits, whereas they have no more expertise in matters of morality than anyone else.

Justice Scalia’s thesis explains a lot about why judicial confirmations have become so contentious. We might add that some interest groups raise a lot of money and provide employment for political operatives, so they have an interest in sensationalizing the process.

Justice Scalia is realist enough to know that his eloquent critiques will have little immediate impact. But he provides some context for those who are baffled at the vehemence involved.