WASHINGTON – A public official can fight to expand the power and prerogatives of his office with skill and cunning. Defending the prerogatives of other officials, in another branch of government, is done only out of principle.
Justice Antonin Scalia spent a career in America’s judicial aristocracy defending representative democracy. He wanted courts to play a limited, supportive role, interpreting texts produced by representatives of the people. If new meanings are required – as they often are, in a varied, progressing country – then it is the people who need to provide them.
Michael Gerson“Do you think the American people would ever have ratified” the Constitution, Scalia asked, if they had known that “the meaning of this document shall be whatever a majority of the Supreme Court says it is?”
The reaction of judges who enjoy a starring role in American government was, and is, negative. Which is unsurprising. Progressive judges have an interest in making their private moral intuitions the law of the land, without the inconvenience of having to persuade their fellow citizens. If judicial decision-making involves the interpretation of evolving standards, this gives tremendous influence to the interpreters. Progressives generally like this approach because it has secured progressive outcomes. But, as a political theory, there is nothing particularly liberal about it because it grants immense political power to a small self-serving elite.
Here is Scalia: “The non-originalist judge who decides what the modern Constitution ought to mean – perhaps by applying his favorite principles of moral philosophy, or perhaps only by applying his own brilliant analysis of what the times require – escapes the application of any clear standard, by which we may conclude that he is a charlatan.”