Scalia on the Role of the Courts

by Ramesh Ponnuru

Last week Justice Antonin Scalia spoke at a Union League event with Princeton University professor of politics Robert P. George, who summarized the event on his Facebook page:

Justice Scalia was sparkling. I have had the privilege of conducting public dialogues with him on several occasions, and he has always been impressive. But tonight he was at his absolute best. The 600 members of the Union League who gathered for the discussion heard his candid opinions on a range of topics. Unfortunately, it was not videotaped. Here, however, are some highlights.

I asked him how the Constitution seeks to protect liberty and prevent tyranny. He rejected the idea that the main mechanism is the Bill of Rights. Rather, he opined, it is the structures that divide powers between the national goverment and the states, limit the powers of the national government to those delegated and enumerated, and separate powers in a system of checks and balances.

He lamented the unwillingness of Congress to guard its powers against encroachments by the executive and judicial branches.

He declared federalism to be dead–having been killed by the direct election of U.S. Senators, which deprived the states of their mechanism for resisting federal encroachments and usurpations.

In the evening’s most important comment, he declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution. Without prompting from me, he cited Lincoln’s treatment of Dred Scott. As it happened, I had a copy of Lincoln’s First Inaugural Address with me (you never know when you’ll need it), so I read Lincoln’s words on the case to the audience.

Justice Scalia strongly and colorfully condemned the Obergefell (“same-sex marriage”) ruling and the self-contradictory theory of “substantive due process” on which it (and a number of other controversial decisions, including Roe v. Wade) rests. He echoed the severe criticism of the decision that he announced in his dissenting opinion.

He also strongly condemned the Supreme Court’s “establishment clause” jurisprudence on the ground that there is no textual or historical basis for the Court’s claim that laws and policies must be neutral not only between different religions, but also between religion and non-religion.

He defended the Citizens United (campaign finance) decision as a ruling required by the First Amendment’s free speech guarantee. He also defended as a vindication of freedom of speech his vote to forbid states and the federal government from criminalizing the desecration of the American flag.

He argued that presidents get to decide whether to treat international agreements as treaties (requiring Senate ratification) or executive agreements. If a president chooses the latter option, then his deal can be abrogated by the next president. If he wants to bind his successor, he has to go for a treaty and win ratification by 2/3 of the Senate.

Justice Scalia has a reputation for brilliance, pugnacity, candor, and humor. This evening’s performance, I dare say, burnished that reputation for everyone in the room.

All of these points are interesting, but I agree with Professor George that the ones about the limits of officials’ obligations to adhere to the reasoning of Supreme Court decisions were the most important. The debate about this issue has heated up since the ruling on same-sex marriage. Some of us have argued, using Lincoln’s example, that while the Supreme Court’s decisions deserve deference from elected officials, that deference should not be absolute. Others, including some conservatives and libertarians, have suggested that this position is dangerous and lawless. Justice Scalia is siding clearly with the anti-supremacists.

Running through all of these remarks is a limited conception of the judicial role. Courts sometimes have to intervene when lawmakers violate the explicit terms of the Constitution, as Scalia believes they have done in some campaign-finance regulations. But we should look for the protection of liberty to the political process established by the Constitution rather than to judicial enforcement of rights guarantees; it is mainly up to the political branches to guard their prerogatives; and the Court is supreme only in a qualified sense.

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