Monday, February 2, 2009

Whither Humility?

Michael Goldhaber posted an article in the 1-30-09 American Lawyer Daily about U.S. Supreme Court Justice Antonin Scalia, which article included the following passage:

"There is little to unify Justice Scalia's various comments on comparative law except his wit--but they nicely capture the contradictions between his temperament and his professed philosophy. Scalia embodies the religious moralizer as preacher of judicial restraint.

"It is quaint to think that Justice Scalia's particular childhood experience, as a devout Catholic in 1940s Queens, reflects the one and true "American tradition" of anything. That Scalia seems to think so would be of limited consequence if he walked the talk on judicial humility. But a number of studies have rated him at or near the top of the judicial activism league, whether measured by his proclivity to strike down federal agency decisions or to strike down federal laws and overturn court precedent."

Based on this, Goldhaber declares that Justice Scalia's religious views are "dangerous."

Goldhaber's article is sheer liberal condescension. What does "judicial humility" have to do with striking down federal agency decisions or federal laws or overturning court precedent? When he became a Supreme Court justice, Scalia swore an oath to "faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States." Interpreting and applying the law is his job! Humility does not enter into it -- he has to do what he thinks is right under the law.

It is always difficult for elitist liberals such as Mr. Goldhaber, who value all that is European and believe that all ethics are situational, to understand someone who has a consistent, coherent philosophy. It further frustrates them that Justice Scalia has the finest mind on the Court and writes the most cogent, readable opinions.

In the article in question, Goldhaber reports on Scalia's reference to "a 2000 ruling by the Strasbourg-based European court, holding that Britain had violated the Convention’s guarantee of privacy when it prosecuted five men for gross indecency based on private group sex. The justice referred to the conduct in A.D.T. v. United Kingdom as a 'five-man homosexual orgy.' Scalia joked: 'The Court didn't say how many people you need [for the conduct to become public]. Presumably it's somewhere between five and the number it takes to fill the Coliseum.'"

Goldhaber dismisses this as a joke. While unquestionably funny (Scalia's wit is well-known), what of the question posed by Scalia -- when does the conduct become public? What is the line between private and public, and how should courts and people distinguish the two? It is this attention to the practical aspects of judicial decisions that distinguishes Scalia from many other judges and should endear him to trial courts and practitioners alike. Liberals, on the other hand, detest drawing bright lines, because it deprives them of the opportunity to create new rules in every case that comes before them.

For over 20 years, Justice Scalia has labored to restore the Constitution to its rightful place in our jurisprudence as a primary source to be followed, not a blank slate on which to chalk up another social or political agenda. His years and his views should be venerated and followed, not denigrated by those who, like Mr. Goldhaber, lack the requisite humility to know when they are wrong.

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