Friday, April 25, 2008

Scalia: I'm a Conservative, But Not Biased

This law.com article acts as a teaser for Leslie Stahl's interview with Justice Antonin Scalia, which will air on 60 Minutes Sunday.

Scalia does a good job explaining both his judicial philosophy and how this differs from personal opinion.

Scalia told CBS News' "60 Minutes" that he may be conservative, but he is not biased on issues that come before the Court. "I mean, I confess to being a social conservative, but it does not affect my views on cases," Scalia said in excerpts released Thursday.

"On the abortion thing, for example, if indeed I were ... trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like to see adopted, which is to interpret the Constitution to mean that a state must prohibit abortion," Scalia told correspondent Lesley Stahl.

"And you're against that?" Stahl asked.

Scalia replied, "Of course. There's nothing" (in the Constitution to support that view).

One's judicial philosophy for interpreting the Constitution doesn't have to parallel one's personal opinions about certain issues. That's why, for example, I'm personally opposed to gay marriage, but I can accept that states may allow it. And I feel the same way about abortion.

When I was a liberal, I truly disliked Justice Scalia and thought his argument--that the Constitution says what it says and no more--was simplistic and stupid. But law school caused me to appreciate the legislative process (including persuading enough people of the rightness of one's position) and the importance of having certain immutable standards. The problem with the "living Constitution" philosophy is that it takes away the right of the people to create laws through the process outlined in the Constitution.

The other problem with the living Constitution interpretation is that it allows a small number of people (five justices) to override the will of the majority through a non-democratic process. There is a perfectly constitutional process in place if one really wants change: the amendment process. But liberals dislike that alternative because it requires thought and persuasion as opposed to bullying.