Deliberation on the Supreme Court

Justice Antonin Scalia has been engaged in some compelling public debates and conversations lately. He’s provoking a lot of thought about the Court and the legal process. The Washington Post carries this report today:

Deeply controversial issues such as 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, according to Supreme Court Justice Antonin Scalia.

Scalia, during a panel Saturday 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.

The process has become increasingly contentious, to put it mildly.

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 could 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 . . . all the social issues the courts are now taking.”

Scalia said that in the past, courts did not decide social issues. “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.”

He brings refreshing clarity to these debates. Even those who report on them.

Scalia expressed disdain for the news media and the general reading public, and suggested that together they condone inaccurate portrayals of federal judges and courts.

“The press is never going to report judicial opinions accurately,” he said.

“They’re just going to report, who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy? And that’s all you’re going to get in a press report, and you can’t blame them, you can’t blame them. Because nobody would read it if you went into the details of the law that the court has to resolve. So you can’t judge your judges on the basis of what you read in the press.”

Now that’s a wise judge.