The New York Times > Opinion > That Scalia Charm

The New York Times > Opinion > That Scalia Charm: "March 21, 2005
March 21, 2005
That Scalia Charm

Some court-watchers say Justice Antonin Scalia is on a "charm offensive" to become the next chief justice. Then he must have been taking the day off when he gave a speech last week and lashed out at the Supreme Court's recent ruling striking down the death penalty for juveniles, and at the idea of a "living Constitution." There is nothing charming about his view that judges have no business considering the constitutionality of aspects of the death penalty, or that the Constitution should be frozen in time.

Justice Scalia dissented bitterly in this month's juvenile death penalty case. Reasonable minds may ask, as he did, whether the majority opinion relied too heavily on the norms of international law in deciding what punishment does not meet modern standards of decency. But Justice Scalia disagreed not merely with the majority's conclusion that offenders cannot be executed for crimes committed when they were under the age of 18, but with the very fact that the court was even considering the question. "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?" he asked.

In his speech last week at the Woodrow Wilson Center, he continued on the same theme. He attacked the idea of a "living Constitution," one that evolves with modern sensibilities, which the Supreme Court has long recognized in its jurisprudence, and of "evolving notions of decency," a standard the court uses to interpret the Eighth Amendment prohibition on "cruel and unusual punishments" in cases like those involving the death penalty.

In drafting the Constitution, and particularly the Bill of Rights, the Founders chose to use broad phrases that necessarily require interpretation. Since its landmark 1803 ruling in Marbury v. Madison, the court has held that it is the final word on the Constitution's meaning. In the recent juvenile death penalty case, the court was doing its job of determining what one such phrase, "cruel and unusual punishment," means today.

The implications of Justice Scalia's remarks are sweeping. Many of the most central principles of American constitutional law - from the right to a court-appointed lawyer to the right to buy contraception - have emerged from the court's evolving sense of the meaning of constitutional clauses. Justice Scalia seems to be suggesting that many, or perhaps all, of these rights should exist only at the whim of legislatures.

Justice Scalia may believe that by repeating his radical views enough times, the nation will grow accustomed to them. But his approach would mean throwing out much of the nation's existing constitutional law, and depriving Americans of basic rights. Justice Scalia's campaign to be the next chief justice, if it is that, is a timely reminder of why he would be a disastrous choice for the job.