Scalia On Judicial Independence

Posted on October 24, 2006

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.”

Absolutely! The more the courts step outside of their bounds of interpreting whether something is within the realms of the Constitution and into the realm of creating new laws and rights from thin air, the more dangerous they become. The framers specified the role of the judiciary clearly. If the courts don’t restrain themselves in matters there really isn’t anyone who can or will. Scalia is not arguing that the judicial branch should not be a check on the other branches. He is stating how dangerous it is not have a check on the judicial branch when they step out of their bounds and into the field of the legislative branch.

Ace asks:

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?

This is the point so many of us are trying to make. With groups out there like the ACLU stretching the boundaries of the Constitution and judges relying on foreign laws in their rulings, some kind of limits must be adhered to.

Scalia 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.”

Justice Samuel A. Alito Jr., the newest member of the Supreme Court, agreed that “the same thing exists, but to a lesser degree, with the lower courts.”

Certainly there would be no problem if judges could be trusted with self-restraint to stay within the role assigned to them. However, too many judges toss aside notions of judicial self-restraint and decide matters just as a legislator would, often even using foreign law to reach their own prejudiced opinions in constitutional matters. There is certainly a problem. Whether there is a solution in term limits, electing judges, or making an easier process for legislators to overturn faulty decisions…a solution needs to be worked on. The problem is past being out of hand. Checks and balances should go both ways. Why should an unelected body be the final word when they step outside the bounds of interpretation and into the realm of writing laws?

Ace:

With one big difference — a legislator’s opinion can be overturned by the legislature (and the judicial branch as well). When judges claim this or that is “unconstituitonal,” it cannot be overturned by any one 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?

» Filed Under ACLU, Activist Judges, News, Supreme Court

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One Response to “Scalia On Judicial Independence”

kerwin_brown on October 25th, 2006 8:18 am

Judicial Independence is not written into the U.S. Constitution. There are in fact checks and balances that rely on the executive branch telling them no or Congress regulating them and in some cases impeaching judges.

Neither Congress or the President do do their job for their own reasons.

Scalia is right on target. I have to give him a hand.