Deeply controversial issues like abortion and suicide rights have nothing to do with the Constitution, and unelected judges too often choose to find new rights at the expense of the democratic process, Supreme Court Justice Antonin Scalia said Saturday.
Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.
“You talk about independence as though it is unquestionably and unqualifiably a good thing,” Scalia said. “It may not be. It depends on what your courts are doing.”
Scalia added, “The more your courts become policy-makers, the less sense it makes to have them entirely independent.”
Scalia, a leading conservative voice after 20 years on the court, said people naturally get upset with the growing number of cases in which a federal court intrudes on social issues better handled by the political process.
“Take the abortion issue,” he said. “Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there’s something to be said for both sides.”
“The court could have said, ’No, thank you.’ The court have said, you know, ’There is nothing in the Constitution on the abortion issue for either side,”’ Scalia said. “It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking.”
Scalia said courts didn’t use to decide social issues like that.
“It is part of the new philosophy of the Constitution,” he said. “And when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that’s what places their independence at risk.”
Justice Samuel Alito Jr., the newest member of the Supreme Court, agreed that “the same thing exists, but to a lesser degree, with the lower courts.”