Scalia Defends Gay, Abortion, Gun Rulings at First Baptist

Courtesy Mississippi College School of Law

U.S. Supreme Court Justice Antonin Scalia defended the doctrine of constitutional "originalism" in a speech in Jackson yesterday.

by Ward Schaefer
January 5, 2010

The United States should not look to other countries when interpreting its own Constitution, U.S. Supreme Court Justice Antonin Scalia said yesterday in a speech at First Baptist Church of Jackson sponsored by Mississippi College School of Law.

"If there was any thought absolutely foreign to the founders of our country, surely it was the notion that we Americans should be governed the way Europeans are," Scalia told the audience of roughly 600, which included Gov. Haley Barbour and his wife Marsha, in addition to MC law students. "I dare say that few of us here would want our life or liberty subject to the disposition of French or Italian criminal justice—not because those systems are unjust, but because we think ours is better."

If the Supreme Court takes cues from foreign law, it cannot do so selectively, Scalia argued. He pointed to the Court's 2003 decision in Lawrence v. Texas, which found state laws banning sodomy to be unconstitutional and in which he dissented. Justice Anthony Kennedy's majority opinion in that case cited a 1981 decision of the European Court of Human Rights to argue that Western civilization did not uniformly condemn homosexuality.

Among non-European countries, laws prohibiting homosexuality are more common, Scalia pointed out, meaning that the Court had arbitrarily selected European precedent to justify its decision. On the other hand, the Court has not relied on foreign law in abortion cases, Scalia noted, despite the fact that the United States places fewer restrictions on abortion than many other developed Western nations.

"I will become a believer in the ingenuousness, though never the propriety, of the Court's newfound respect for the wisdom of foreign of wisdom minds when it applies that wisdom in the abortion cases," Scalia said.

Scalia is one of the leading proponents of originalism, a doctrine holding that courts should interpret the U.S. Constitution as people living at the time of its writing would have. Answering questions from students, he said that the Supreme Court decision he was most proud of was his majority opinion in District of Columbia v. Heller, the 2008 case that struck down a firearms ban in Washington, D.C.

"What was good about the case was that not only did my majority opinion proceed upon that road, but even the dissent was an originalist dissent," Scalia said. "It got it wrong, but it was trying, using the right approach."

Scalia also said that he was worried by a mounting trend of appointing career judges to the judiciary. Scalia, 73, is a former appeals court judge, but he had also worked in private practice, as a law professor and in the administration of President Gerald Ford before Ronald Reagan nominated him to the Supreme Court in 1982.

"Every aspect of your career broadens your outlook and the insights that you would have. It's good for the Court to have people with varied backgrounds. One of the things I'm concerned about is that in recent years, nobody who has been appointed has come from another bench," Scalia said.

"It's probably not good," he continued. "It's leading us toward the European system. The big differences between our system and the European system are not what I am talking about here. ... The big difference is the nature of the judges."

Calling European judges "the most blinkered bureaucrats," Scalia said that career judges in European systems can develop a sympathy for the government's side of a case, having worked for the government their entire professional lives.

"You contrast that with the Anglo-Saxon system, where in the most important courts the judges not only have not been spending their whole life with their snout in the public trough, they've been suing the government," Scalia said. "They've been defending their clients against the government. (It's) a different mind, a different mindset."

"I worry about our not having people of a lot of different experiences, especially with substantial legal practice," Scalia added. "More and more people practice for a couple years, then they become a minor state court judge and they stay in the judiciary the rest of their career. You can have some people like that, but if our whole judiciary becomes like that, we're going to become European. I may as well move to France."

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