LONDON, United Kingdom – Taking the opportunity for some international travel, U.S. Supreme Court Justice Antonin Scalia has been apologising to legal and conservative audiences in London for America’s international export of judicial activism, warning against unchecked interventions of foreign judges in domestic matters.
On Friday Scalia met with the the Law and Liberty Circle, the Federalist Society’s London grouping of representatives from the law and civil society. Meetings of the group generally take place under the Chatham House Rule meaning that information disclosed there can be reported by those present, but the identity and affiliation of the speakers may not be explicitly or implicitly identified.
First acknowledging the rule, Scalia then started his remarks by saying “well you can say somebody said it’s the worst judical term he’s seen in 29 years.” This set the tone for the rest of his comments, however downbeat the message may have been his demeanour was always the opposite.
After the event Scalia confirmed that he was happy for some of his ideas to be communicated as they reflect public statements previously made.
Perhaps the biggest moment for his international audience came when Scalia apologised for America exporting the principle of judicial activism since the 1950s which he believes led to the spread of judicial hegemony throughout the world. This is the principle, a “crazy” one to his mind, that somehow judges are deemed qualified to pronounce on issues of morality and rights.
He pointed out that save for the momentarily active conservative Supreme Court of the United States in the 1920s, nobody expects there to be absolute right or wrong answers in economics and therefore do not expect judges to make economic pronouncements.
How then, he asked, do people conclude that human rights, another area lacking in black and white certainties, should be decided on behalf of 330 million people by nine unrepresentative lawyers? What is it about studying at Harvard or Yale (as all nine current Supreme Court Justices did) that makes them supremely qualified to pronounce on abortion or same sex marriage?
The problem he identified is that people become “besotted by glorious abstractions” such as the right to privacy or the right to a family life – principles which nobody would claim to oppose – and then abrogate responsibility for taking hard choices on those fronts to the courts. The courts are happy to take that power and, running with it, let it grow not because they are “wicked” but in many cases because the are “good people who want to do more good.”
Scalia warned his British audience that human rights law as practised under the European Court Of Human Rights is, if anything, even worse. It’s one thing for a country to allow its domestic judiciary to rule on matters of statutory or written constitutional law, but it’s a worse thing altogether for a country to allow foreigners to dictate by means of rulings based on abstractions.
He also warned that the proposed British Bill of Rights interpreted by the Supreme Court of the United Kingdom could make matters worse for us. He took some comfort that the intention is for Parliament to retain ultimate sovereignty and have the power expressly to overrule judgements by a definite and publicly-stated decision. He noted, however, that a partisan US Congress is often happy to sit back and allow activist courts freedom to legislate from the bench when politicians fear trusting the people.
On this 800th anniversary of the signing of Magna Carta, Scalia had one final despondent note to sound. He pointed out that for all its greatness the principles of Magna Carta have been “thrown away” in the United Kingdom. He explained that “it was never a big deal for the British, but always has been for Americans.”
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