Judicial Activism

Last night on C-SPAN the National Constitution Center sponsored an unusually insightful program on the Supreme Court. Meet the Press host Tim Russert interviewed Supreme Court Justices Antonin Scalia, Sandra Day O’Connor and Steven Breyer. The justices showed their personal sides and spoke honestly about their beliefs. Their fondness for Chief Justice Rehnquist was evident – all called him the “Chief.”

The justices joked about Breyer's role as the court's junior member, that requires him to perform such duties as answering the door during closed conferences and even bringing Scalia coffee. He noted how good he had become at that task over the past 10 years, only to have Scalia correct him. Scalia noted that when a vote is tied 4-4 Breyer relishes his privilege of casting the deciding vote.

The Justices also shared their concern about the lack of understanding that people have about the Constitution. "It's a major problem," O'Connor said. "You don't inherit knowledge of the Constitution through the gene pool. It has to be taught." This is an egregious weakness of our pubic school system.

Then the discussion got more serious. Justice Scalia said that the greatest danger to the courts is the "evolving Constitution" being created by judges who combine the law and politics. Scalia added, "Something has changed fundamentally. People are realizing that judges have enormous power over policy." He suggested the public and politicians are advocating now for judges who will agree with them politically.

Calling the difficulty confirming judges "unprecedented," Scalia said 50 years of judges acting as policymakers has caused people to view the court as more of a political body. He recalled that he was confirmed by the Senate, 98 to 0, two decades ago, even though senators of all persuasions knew he was a conservative.

Scalia and Breyer also argued over the use of international law in deciding US cases. The court recently cited international rejection of juvenile executions as a reason to outlaw the juvenile death penalty in the United States. O'Connor and Scalia declined to join that opinion. Scalia said that the feelings and practices in other countries were irrelevant in deciding what to do about the death penalty in the United States. He said that ruling was especially inappropriate because the court had concluded the opposite just 15 years earlier.

Justice Breyer did not agree. "It's appropriate in some instances" to look at what goes on in other countries, he said. "They do not bind us by any means." Breyer argued that the founders relied on international law in drafting the Constitution and the Bill of Rights.

Scalia responded, "Ah, but [they were] writing a constitution, not interpreting one, my friend."

Judicial activist: Steven Breyer