Scalia's Judicial Moralizing

Justice Scalia is in the news again after delivering a speech in which he condemned "judge-moralists." According to the Associated Press report,

Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

Now, being a "Joe Sixpack", I'm flattered by Scalia's thinking of me.  And I agree with him on this completely.  Sure, we can all sit around reading Kant and Rawls until we're blue in the face, but we, as individuals, will still probably disagree with one another  about things like consequentialism vs. deontology and what have you.

Furthermore, I think that this should not really have much to do with the way questions such as abortion and gay marriage are decided in relation to the law.

One man's morality is another man's immorality.  So, how do we fix this in relation to the law?  I would argue that we don't.  The morality of an issue should not come into play with regard to the law.  Abortion laws should be established based not on one or another person's idea of morality, but on whether or not there is a societal interest that outweighs the the right to individual liberty (in this case the woman's liberty to obtain a medical procedure).  

There can also be questions of conflicting individual interests, such as whose interests take priority - the woman or the child growing within her.  In this case, though, the question begins with complicated and unanswered questions of science - when is the magic moment that life begins?  From there we can get into difficult questions of how to prioritize conflicting claims, but in order to have that discussion, we have to establish when the fetus is vested in its rights (something thoughtfully answered in Roe v. Wade).

The AP goes on to say,

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said.

I think Scalia's wrong about this.  I've never met anyone who changed their decision about important moral questions based on what any judge or court wrote.  Nor do I know anyone who considers judges or courts the last word on questions of morality.  The public is still free to believe that drinking alcohol is immoral, and it is still free to believe that miscegenation is immoral.  But that has nothing to do with whether or not the state should be able to dictate what one can or cannot drink, or with whom one can or cannot have sex - that is a question of law not morality.  This is one of the important things that sets our nation apart from others like Afghanistan and Iran.

What irritates Scalia, I think, is not a question of whether or not any judge is making moral declarations from the bench.  I think that, unlike most Americans, Scalia believes not that we are a free people, whose rights can be restricted only when it promotes an overwhelming societal interest, but that we are a people living under a state authority that has granted us a limited set of narrowly defined rights outside of which those in authority may make any restriction of our individual liberties based on their own personal morality (Scalia's in particular).

I'm not a legal scholar, so my understanding of all of this comes from what little I've read here and there.  But I have, for some time, been under the impression that the American legal system was established when the people granted the state a limited set of narrowly defined powers, and reserved for themselves everything else.  

Scalia is correct that judges should not moralize from the bench.  He would be well reminded, though, that this maxim should apply even when you agree with the morality being promoted.

Tags: law, Morality, scalia, SCOTUS (all tags)


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