ONE JUSTICE'S VIEW? IT'S THE CONSTITUTION'S:

One justice's vision of role of the courts: While liberals view Antonin Scalia as a right-wing ideologue, he holds exalted status among a growing cadre of conservatives. (Warren Richey, 11/16/04, CS Monitor)

His is an approach to law that seeks to limit the ability of judges to use judicial power to impose their own value judgments and policy preferences on the nation. It is a form of judicial restraint embraced by President Bush, who has said he will seek to appoint future Supreme Court justices in the mold of Scalia and Clarence Thomas.

What might that mean for the high court and the future of American jurisprudence?

In his speech to the Federalist Society, Scalia offered a detailed description of his approach to constitutional interpretation. In his view, Supreme Court justices overstep not only their authority but also their expertise when they try to answer some of society's most divisive moral questions in legal cases such as abortion. He says moral issues should be resolved by elected political leaders, not unelected judges.

And he warns that the high court's willingness to take up moral questions that are still open to debate within society will increasingly mire the court in a political morass. It is a trend that has made judicial nominees targets in a bitterly partisan Senate confirmation process featuring character assassination and filibusters.

"One shudders to think what sort of political turmoil will greet the next nomination to the Supreme Court," Scalia told his Federalist Society audience, which included many individuals thought to be on a White House shortlist for a high-court post.

"The lesson is, in a truly democratic society - or at least the one in America - one way or another the people will have their say on significant social policy," he said. "If judges are routinely providing the society's definitive answers to moral questions on which there is ample room for debate ... then judges will be made politically accountable."

The Founders would be frightened that it is thought controversial when a Justice "seeks to limit the ability of judges to use judicial power to impose their own value judgments and policy preferences on the nation."

Posted by Orrin Judd at November 15, 2004 7:41 PM