Justice Scalia Opines on the Difference Between Law and Politics

U.S. Supreme Court Justice Antonin Scalia was predictably queried about the usual political issues when answering questions posed by lawyers at the American Bar Association’s recent Midyear Meeting in New Orleans.  On the Merits was there to observe the proceedings, where the topics covered by Scalia included those you might expect, including his take on Roe v. Wade (Scalia described the opinion as a “mess”), the effect of his Catholicism on his decisions (none, he says), and same-sex marriage (which he appropriately declined to discuss since the issue likely will be before the Court soon). 

But when asked point-blank about the effect of politics on the Court’s decision-making, Scalia strongly reiterated a consistent theme of other Supreme Court Justices, even those who often vehemently disagree with him. He said politics don’t affect decisions at all; what the public and media regard as political ideology is really what Scalia describes as the “fault line” of theories of constitutional interpretation, or the vast differences in philosophical approach to constitutional issues that that each individual Justice brings to his or her judicial opinions.  Scalia says his philosophy is to follow the “original meaning” of the Constitution, which he contrasted with others’ support for a “living” Constitution that allows for constitutional principles to adapt to specific situations not anticipated by the Founding Fathers.  

The debate over the proper approach to constitutional interpretation will rage on long after we are all gone, but a primary reason we have nine justices with lifetime appointments is the hope that many viewpoints will be at the table when these fundamental and long-lasting decisions are made.  Having judges who feel removed from politics is a good thing. The alternative is much worse
 

Posted: 2/16/2012 5:45:32 AM by TCLE Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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