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The issue is not whether we should have abortions, or gay marriage, or racial preferences, or assisted suicide, or whatever, but rather: Who decides?

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The Great, Wise Dissenter

The issue is not whether we should have abortions, or gay marriage, or racial preferences, or assisted suicide, or whatever, but rather: Who decides?

A book made up of Supreme Court opinions, even those as entertainingly written as Justice Antonin Scalia’s, seems at first blush to be an odd idea. Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice (published by Regnery, a sister company of HUMAN EVENTS) provides plenty of great lines, but to understand and appreciate them requires context, and the context is, well, arguments among lawyers, with all the tedium that implies.

And yet, while the ideal reader of this book may be a conservative law student or pre-law student hungry to know what it’s all about, there is so much crunchy wheat here that most readers will not mind the chaff.

This is, in all events, a book whose time may have come. The debate over the proper role for the federal judiciary is, to borrow from Clemenceau, too important to be left to the senators who vote on the President’s judicial nominees, and unfortunately it has long been clear that it cannot be left to the Supreme Court either. American voters must understand and appreciate what is at stake, and for this there is no better guide than Justice Scalia.

Who Decides?

The issue is not whether we should have abortions, or gay marriage, or racial preferences, or assisted suicide, or whatever, but rather: Who decides? Are these questions for federal judges to decide for all of us, or ought it to be left to the people and their elected representatives?

To what are called “interpretivists,” the answer is straightforward: Follow what the texts of our nation’s laws say–beginning, most fundamentally, with the Constitution. If the Constitution gives Congress authority to pass a law, it may do so. If it doesn’t, it mayn’t. If the Constitution creates a right or guarantee against a certain kind of governmental action, the government cannot act in that way, but judges ought not make up rights or guarantees that aren’t right there, written down. If a statute says X, then it means X, and a judge ought not pretend that it says something else, no matter how strongly he’d like it to.

The opposite of interpretivism is “judicial activism,” and it occurs whenever a judge substitutes his or her own preference for what the text of a law ought to say for what it in fact says. There is a lot of deliberate confusion spread by the left on this point.

Thus, the “Editorial Observer” of the New York Times wrote last month, “President Bush claims to want judges who will apply law, not make it,” but asserted that Bush’s two favorite justices–Scalia and Clarence Thomas–“are judicial activists, eager to use the fast-expanding federalism doctrine to strike down laws that protect people’s rights.”

There is, however, nothing “activist” about striking down a statute that is actually inconsistent with the Constitution. Indeed, it would be activist for a judge to ignore his constitutional duty and uphold it. Judicial activism, properly understood, occurs when a judge substitutes her own policy preferences for what a legal text actually requires–whether this means using a nonexistent constitutional provision to strike down a law (as the Court has done with abortion), or ignoring an actual constitutional or statutory provision in order to uphold a program (as the Court has done with racial preferences).

The limits on congressional power in our federalist system were designed to “protect people’s rights,” and so they do. When Congress passes a law for which it lacks constitutional authority, it is not activism–and it does protect people’s rights–for a judge to declare it unconstitutional.

Thus, as this collection of Justice Scalia’s opinions shows, sometimes he strikes down laws (and when he does, he may or may not like them), and sometimes he upholds laws (and when he does, he may or may not like them). It all depends on whether he thinks the text of the statute can be squared with the text of the Constitution.

But if interpretivism will sometimes yield results consistent with the conservative political agenda but sometimes not, why should conservatives care whether the judiciary is interpretivist or not?

Judicial Activism

There are two answers: The first is the pragmatic one that, these days, it is generally the case that the liberal political agenda is being advanced by judicial activism. The second is because it is an illegitimate usurpation of power for judges to be activist. Conservatives don’t, or at least shouldn’t, believe in that sort of means, even for good ends. It is wrong, and it has a corrosive effect on our republic.

The book’s editor, Kevin A. Ring, who worked for John Ashcroft when he was a senator and now practices law in Washington, D.C., has done a fine job of collecting some of Scalia’s best opinions, dividing them into subject matter areas (race, abortion, etc.), and providing through his commentary the necessary legal and factual context of them. That said, the principal author of the book remains Scalia, and he is brilliant and funny, sarcastic and poignant, passionate and wise.

He is also persuasive. Indeed, many of his dissents are primarily exercises in nothing but logic and clear-thinking. The reader is often left wondering: Since the other justices could have changed their votes, and since Scalia’s dissent made it so clear that they were wrong, then why didn’t they change their votes, if they wanted to be intellectually honest? And the answer, of course, is that they didn’t care if they were intellectually honest or not.

I will close with my own favorite Scalia dissent (one not, unfortunately, in this collection). The Court’s majority, in Johnson v. Transportation Agency (1987), had continued with its rewriting of Title VII of the 1964 Civil Rights Act to exclude whites and males. Scalia’s stinging dissent concludes:

“It is unlikely that today’s result will be displeasing to politically elected officials….Nor will it displease the world of corporate and governmental employers….In fact, the only losers in the process are the Johnsons of the country [i.e., white male members of the working class], for whom Title VII has been not merely repealed but actually inverted. The irony is that these individuals–predominantly unknown, unaffluent, unorganized–suffer this injustice at the hands of a court fond of thinking itself the champion of the politically impotent. I dissent.”

Pretty good, huh?

Written By

Mr. Clegg is general counsel of the Center for Equal Opportunity.

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