Thursday, February 11, 2016

Why judges should not be moral arbiters

K.C. Vijayan
Senior Law Correspondent

11 Feb 2016

Issues of social preferences can be expressed only through electoral process, US judge tells Singapore audience

After the United States Supreme Court gave same-sex marriages the green light, Singapore Prime Minister Lee Hsien Loong was asked if, in his view, such thorny issues were better decided through politics or in the courts.

In his response to the question, which was posed at a dialogue at the Singapore Management University (SMU) last June, he said of the US ruling that any ban on such unions was unconstitutional: "That is their (the US) system. They will not say that they made a decision on the issue; they will say that they interpreted the Constitution in its true sense and this is what it has always meant.

"Things like abortion, racial discrimination, drugs, all sorts of things go to the Supreme Court."

And that means that the US Congress, made up of those elected by the people, does not have the last word, he highlighted at the SMU's Ho Rih Hwa Leadership in Asia Public Lecture.

That same issue was at the heart of a lecture that Justice Antonin Scalia delivered here late last month.

Justice Scalia, 79, the longest- serving judge with the US Supreme Court, took office in 1986 when Mr Ronald Reagan was president. He voiced his objection to recent developments in the US which were in his view making "moral experts" out of judges and giving rise to judicial hegemony even when "it is abidingly clear that judges have no better ability than the rest of us in deciding what's moral".

Speaking to a packed audience at the National University of Singapore during a public lecture titled "Judges as Moral Arbiters" under the Lee Kuan Yew Distinguished Visitors Programme, Justice Scalia said he believed instead that the "most important issues have no right or wrong answers".

"They involve social preferences, which in democracies can be expressed only through the electoral process."

More than 50 years ago, he explained, there was belief in looking to experts to provide direction, but in the US and the West, these have been replaced by the "judge moralist" in issues like abortion, the death penalty, denial of equal protection for marriage between people of the same sex and euthanasia.

But Justice Scalia said there is no reason that decisions over such issues should be taken away from the people and given to judges to determine in black-and- white terms. "We have become addicted to abstract morality," he went on. "And abstract morality is dangerous when it is given force of law."

He cited the European Convention on Human Rights which had ruled on people's right to respect of their private life.

"But what does respect for private life mean? The European Court of Human Rights has had to decide that. Should the right to orgies be part of the right to respect for one's private life? The answer is that the question shouldn't be answered by seven unelected judges. But my court does that all the time!"

(The orgies case refers to a 2000 case involving a British homosexual whose home was raided by police. They found videotapes showing the accused and up to four other men engaged in sex. He was convicted of gross indecency, but on appeal the European Court ruled that the conviction violated his right to respect his private life and ordered the British government to pay him £34,000 in compensation.)

Justice Scalia referred to how far judges have taken the "due process" clause in the American Constitution. Its Fifth Amendment, for instance, states that no one can be deprived of "life, liberty, or property, without due process of law...".

Until relatively recently, the meaning of such laws was "static" and could be changed only by amending the US Constitution.

But in present times, Justice Scalia said that "my court" changed that; it invented the notion of a "living Constitution"? where the meaning of the Constitution can change over time, along with evolving standards of decency.

"So judges decide when there has been evolution and when evolution equals progress," he added.

The Supreme Court "has used the due process clause to hold that it is not permissible for military colleges to be men-only, even though it has been constitutional at West Point for centuries", he said.

"It has used the due process clause to include the right to assisted suicide."

He went on to say: "So judges decide when there has been evolution and when evolution equals progress. We are the envy of Western judicial powers and even the constitutional courts in Europe have followed us.

"But I am questioning the propriety and sanity of a decision like that (on orgies) being made by unelected judges.

"Nothing in their experience, whether in law school or in practice, enables judges to decide on the right to assisted suicide. Why would they have special abilities to come up with the correct answers?"

Just as scientific experts are not qualified to give answers in policy issues, judges are not qualified to give judgments in cases just because they involve human rights.


Justice Scalia said the issue is compounded by the fact that (Supreme Court) judges are nominated by the US president and confirmed by the Senate - which means that "politics cannot be taken out of the judicial system".

"Every liberal president has promised to appoint judges that uphold the abortion rights case," he pointed out, and this essentially is judicial activism - which is when judges colour their decisions based on their liberal or conservative backgounds.

Expressing unhappiness about the intrusion of politics into judicial selection, he added: "I am not sure whether (judicial) hegemony has reached Asia, but be on guard.

"The temptation of judicial arrogance exists."

Justice Scalia's remarks can perhaps be understood when seen in a social context in the US. The historical record there suggests the difficulty in getting constitutional amendments through Congress, hence the preferred recourse to the US courts.

But as PM Lee pointed out at the SMU dialogue last June, the US system "is not our system".

"In our system, the Parliament decides, the Executive through the Parliament, takes the lead, legislates and legislates on behalf of the population. On an issue like LGBT (lesbian, gay, bisexual and transgender) where there are very strong views in the society, I think the legislature has to act very cautiously.

"We have a much more cautious approach towards social issues. Because it is really a conservative population and I think we let the views evolve with time. The population has to decide collectively rather than the Government decide that I am going to go one way or the other."

Still, the reality is that individuals who are dissatisfied with the status quo will try to seek redress through the courts, as has already happened here. That has also been the US experience, and Justin Scalia's warning against judicial activism is a timely reminder of the consequences of going down that route.


So who is Antonin Scalia? Here is an opposing view:

Who is Antonin Scalia and why is he out of touch with changing social views?

Comments about black students during conservative supreme court justices’ sympathetic hearing in affirmative action case are just the latest in judge’s 30-year record of a radical reading of the US constitution

Dan Roberts in Washington

Saturday 12 December 2015

Taken out of context, the suggestion this week by the longest-serving of the nine supreme court judges that black students should attend “lesser schools” rather than waste their time at elite American universities was shocking enough.

Senator minority leader Harry Reid compared the comments by justice Antonin Scalia to the casual racism of Donald Trump – a sign perhaps that the creeping intolerance of the presidential election had spread to the highest court in the land.

“The only difference between the ideas endorsed by Trump and Scalia is that Scalia has a robe and a lifetime appointment,” Reid said. “The idea that African American students are somehow inherently intellectually inferior to other students [is] despicable.”

Scalia’s supporters argue he was misunderstood. He was merely playing devil’s advocate, they say, questioning those defending affirmative action in a Texas college admissions system that had outlasted its usefulness in tackling segregation on campus.

“One of the [legal] briefs pointed out that most of the black scientists in this country don’t come from schools like the University of Texas,” was Scalia’s provocation.

“They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”

But closer analysis of the remark, and of the 30-year record of the pre-eminent legal conservative who went on to associate himself with it, point to a different conclusion.

In this context, Scalia’s attack on minority students was not a clumsy rhetorical blunder or well-meaning discussion of educational theory, but entirely consistent with his radical reading of the US constitution – a longstanding view that is far removed from the ideas of liberals who cherish the document’s egalitarian spirit.

At the heart of the “originalist” interpretation championed by the 79-year-old Scalia is a belief that it is the letter, not the spirit, of the constitution that should prevail in cases such as this.

When faced with questions such as this week’s appeal against the University of Texas by a white student who failed to get in, the so-called “equal protection clause” of the 14th amendment can never allow the use of race as an admissions criterion, even if the intent is to ensure more equality overall.

Glimpses of such thinking can also be seen in Scalia’s contribution to the court’s 2013 decision to repeal key parts of the Voting Rights Act, a cornerstone of the civil rights era that prevented southern states from putting up obstacles to deter black voters.

This protection had become little more than a “racial entitlement”, Scalia argued, claiming it was unconstitutional to treat some states differently by making them clear any changes to voting rules with the federal government first.

Such arguments can appear arcane, often turning conventional wisdom on its head. But Scalia has a playful way of putting down those who believe the constitution is meant to protect minorities. “Legalistic argle-bargle”, “interpretive jiggery-pokery” and “pure applesauce” are just some of the phrases he has used to ridicule the arguments of his liberal opponents.

Similarly, in the last big affirmative action case before the court, in 2003, Scalia dismissed the University of Michigan Law school’s efforts to ensure diversity as a “mystical” “sham” that would challenge “even the most gullible mind”.

Like Trump, Scalia deploys humour as a weapon and has little patience for what he sees as political correctness.

During arguments over legalising gay marriage, which the court duly did this summer, the court was interrupted by a protester yelling: “If you support gay marriage, you will burn in hell! It’s an abomination!”

While chief justice John Roberts tried to restore order, Scalia remarked drily that he thought the interruption “was rather refreshing, actually”. It was a quip that broke the tension and prompted laughter in court, but placed him firmly on the side of the Bible-thumping protestor.

The son of an Italian immigrant from Sicily, Scalia grew up in Queens, New York, and his Catholic faith plays a big part in his judicial conservatism. But he claims it is more representative of the moral position of ordinary Americans than the elite Harvard- and Yale-educated judges who make up the supreme court bench.

“The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges,” he argued in his gay marriage dissent.

“To allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

Despite this objection, this poker-playing Reagan appointee who likes watching Seinfeld, The Sopranos and Duck Dynasty can appear strikingly out of touch with changing social views.

In a 2003 case against anti-sodomy laws in Texas, Scalia claimed that “many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their homes”.

Such views, as with his fierce support of the death penalty and opposition to abortion, may play well with the dwindling numbers of social conservatives and earn him nicknames like the “Fox News justice”. But they appear out of step with the majority of US opinion today.

This reputation as an outlier will have only been bolstered this week with remarks on race and intelligence at which even Trump might have blanched.

“I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible,” Scalia concluded.

Michelle Obama, meanwhile, released a rap video to promote college attendance among African American students. Its chorus: “Better make room, we’re coming.”


[My impression of Justice Scalia is coloured by criticisms, such as the above, as well as Jon Stewart's The Daily Show whenever Stewart points out Scalia's... anachronistic attitude. 

So in a sense his "lecture" was enlightening. We at least get a sense of the thinking behind his position.

So he is against "constitutional drift", and believes that the meaning of the constitution does not change over time, regardless. He is however okay with the idea of changing the constitution legally, legislatively (i.e. by at act of parliament or congress).

HOWEVER, and this is a BIG "however", in the US, poltiical gridlock has meant that the legislative avenue is blocked.

So the citizens have turned to the courts to "reinterpret" the law, the constitution, in the light of changing social mores, can "evolve" and be relevant to the times.

Which is his objection. 

I can agree with his objection to Justices "making" (or re-interpreting) law. I agree that it is not quite correct. 

BUT... in the political and legislative gridlock that is the US, the courts at least provide some release, some relief from the oppressive unchanging irrelevant constitution.

The absence of such relief may well lead to social upheaval.]

[AFTERNOTE 15 Feb 2016: Obituary. 

Just two weeks or so after his lecture (28 Jan 2016), Justice Scalia pass away in his sleep after a day of quail hunting on Feb 13 2016. ]

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