Scalia: "Judicial Independence" Not A Virtue When Courts Become Political Policymakers

Does anyone press for untrammeled executive independence -- freedom from interference by other branches or the public, via voting?

Or for unrestricted legislative indepenence?

Of course not. And if the courts continue transforming into nothing more than a shadow legislature, why should they continue to have license and freedom from public opinion that would be considered dangerously undemocratic were the true political branches to enjoy them?

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.

"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."

He added, "The more your courts become policymakers, the less sense it makes to have them entirely independent."

He continues:

"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."

And finally:

Later, Scalia observed, "It so happens that everything that is stupid is not unconstitutional."

Judges have lost their ability to distinguish from what is permissible, but in their opinion ill-advised or not preferable, from what is truly impermissible under the Constitution. Many of them feel entirely unshackled from previous notions judicial self-restraint, and simply vote on matters precisely as they would if they were a legislator.

With one big difference -- a legislator's opinion can be overturned by the legislature. When judges claim this or that is "unconstituitonal," it cannot be overturned by anone at all, except by the very difficult amendment process.

Why should it be that it takes the people and their elected represenatives years and millions of votes to enact their constitutional preferences, but five (or even two) judges can impose their political prefences at their whim?

posted by Ace at 07:52 PM

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