On March 7, a horde of students, faculty, and security guards filed into McCosh 50 to absorb the words of Associate Justice Antonin Scalia, who visited campus to accept the prestigious James Madison Award at the invitation of the University’s Whig Cliosophic Society. Whig-Clio, founded in 1765 (in part by Madison himself), bestows its highest honor each year to an individual who has shown outstanding dedication to our nation and the global community. This month, Scalia joined the eminent ranks of its previous recipients, who include fellow Supreme Court Justices Earl Warren and Sandra Day O’Connor, former Israeli Prime Minister Golda Meir, Jesse Jackson, and former President Bill Clinton. The award, along with the numerous structured debates sponsored by Whig-Clio, aims to facilitate dialogue on a range of academic and political issues. That Friday evening, Justice Scalia was asked to ruminate on the role of courts in a liberal democracy. In typical Scalia fashion, he immediately pointed out multiple flaws in the prompt, the most offensive of which, to him, was the inclusion of the word “liberal.” Speaking to a full house, Scalia informed us that it is “quite impossible to say with any degree of specificity what is the role of courts in a liberal democracy.” He proceeded to demonstrate this, embarking on a world tour of judicial systems. In India, to borrow his example, judges possess the power to summon those suspected of wrongdoing to appear in court, before any formal claim has been filed. Scalia also drew evidence from the Bible, noting that the Israelites of the Old Testament were governed by judges, until they said “enough already!” (According to Scalia, “even in those days the Jewish people spoke like New Yorkers.”) The point, he said, is that the role of the Court in a democracy is “whatever role the people assign to it.”
Scalia feels this fluidity stiffens significantly once specific rules have been instituted, though. As indicated by Article III of the Constitution, which established the Judiciary, “judicial power was the power to protect individuals from harm.” Scalia emphasized the importance of preserving the original scope and intent of these guidelines, cautioning against what he sees as the slow expansion of the Court’s authority throughout American history. Ill-advised decisions, he claimed, have increasingly encroached upon the powers of the other branches, especially the Executive. Scalia passionately condemned the Court’s essential elimination of the Doctrine of Standing, which, among other provisions, requires the plaintiff to demonstrate substantial, personal damage caused by the actions of the defendant. After a series of holdings which chipped away at this principle, an individual is now free and able to enforce law on behalf of the government (e.g. file a suit to demand that a company pay a fine). Scalia observed that these cases have led to immense responsibilities for the Court, duties which would have seemed preposterous to the founders, such as judicial regulation of prisons and school districts. He insisted upon what he claims is an unfortunate but essential truth of our government. “It is not the case that the Court can do whatever it takes to right the wrong,” he said, and “if that means that there are some wrongs that Courts cannot right, so be it.”
Scalia is well known for this view, and for the originalist approach to Constitutional interpretation that has steadily grown in credibility since his nomination to the Court in 1986. The second oldest sitting Justice, Scalia has witnessed the Court shift in political composition, as it is likely to do again in coming years. The timing of Scalia’s award seems oddly appropriate, presented in 2008 as the next Presidential election approaches. The victor in November could nominate as many as three Justices to the Court; Justice Stevens, a liberal voice at the age of 87, will almost certainly retire within the next term, which adds a new dimension to the already hotly contested Presidential race. I would remind moderate Democrats, tempted by the independent-minded John McCain, that the Arizona Senator has pledged to nominate candidates of a conservative mold. If this happens, Scalia may find even more heads nodding in agreement.
After his oration on the role of courts in a not-so-liberal democracy, which was peppered with jokes on every topic from baptism to designer handbags, Scalia answered pre-submitted questions, prompted by the President of Whig-Cliosophic Society, Molly Alarcon ’10. When prodded with difficult questions, Scalia lost some of his jovial manner-glimmers appeared of the anger and bitter sarcasm that are hallmarks of his often testy dissents. Alarcon did an admirable job of respectfully, yet persistently repeating a question which Scalia dodged, concerning a contradiction in rulings. Asked about the Supreme Court decision during the 2000 Presidential election, Scalia snapped: “Oh get over it. It’s eight years ago.” He continued, saying: “If you didn’t notice, I didn’t like that area of questioning,” drawing indulgent laughter and applause from his audience. The crowd, a mixture of political junkies and the casually curious, seemed to appreciate both his humor and his candor. As Alarcon mentioned before presenting Scalia with the James Madison award, it is almost impossible not to respect him, even if you disagree with every word he writes. The man is consistent. He adheres unflinchingly to the principles of originalism, even emerging in some cases on the side opposite his personal philosophy. With the James Madison Award, Whig-Clio honored this integrity and commitment, which was evident even through Scalia’s joking and occasionally snide comments. In closing, after receiving his plaque and posing for photographs, Scalia remarked dryly: “I hope that, in the few years remaining, I do nothing to cause you to regret having given it.”
Well, all I can say is Amen to that.