Supreme Court Justice Antonin Scalia on Monday criticized judges for acting as “moral philosophers” in decisions on abortion and gay rights.
The conservative justice said his legal philosophy of “originalism” is the best approach — and also the easiest.
“Non-originalist judges say, ‘We agonize a lot.’ I don’t agonize a lot. Should there be a right to this or that? That’s not my job,” Scalia said during a lecture at Georgetown University’s law school.
Scalia made the case for originalism, an approach that says the Constitution should be applied according to the meaning of its words at the time they were written. Lawyers are trained to debate the meaning of words, he said, and introducing other factors goes too far.
“They are not trained to be moral philosophers, which is what it takes to determine whether there should be, and hence is, a right to abortion, or homosexual sodomy, assisted suicide, et cetera,” he said. “And history is a rock-hard science compared to moral philosophy.”
Scalia took aim at the idea that the Constitution evolves with the people it governs.
“The non-originalist judge, who decides what the modern Constitution ought to mean — perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require — escapes the application of any clear standard, by which we may conclude that he is a charlatan,” Scalia said.
The Supreme Court’s term begins next week, and the court’s docket already includes high-profile cases on campaign finance laws, public prayer and affirmative action.
Scalia wrote a scathing dissent last year in the court’s decision striking down part of the Defense of Marriage Act. The ruling applied only to federal restrictions on same-sex marriage, but Scalia said in his opinion that it would clearly open the door to recognizing a right to same-sex marriage in every state — a right he said the Constitution does not protect.
On Monday, Scalia reiterated his opposition to some of the court’s most famous decisions.
“Did any provision in the Constitution guarantee a right to abortion? No one thought so for almost two centuries after the founding, when abortion was a felony in all the states,” Scalia said. “Did any provision in the Constitution guarantee a right to homosexual sodomy? Same answer. Did any provision in the Constitution guarantee a right to assisted suicide? Same answer. Did any provision in the Constitution prohibit the death penalty? Same answer.”
Scalia’s speech was the inaugural address in a lecture series named for the late Robert Bork, the conservative judge whose 1987 Supreme Court nomination was torpedoed by Senate Democrats.