Lame Democracies Produce Activist Judges


The book Scalia Dissents by Kevin A. Ring was the only one I could get my hands on which contained full versions of several of Scalia’s court opinions. Even this collection contained only a handful of his opinions. Personally, I find it a sad indictment of capitalism and/or our culture that bound editions of Supreme Court opinions are not more widely disseminated.

After keeping-up with Supreme Court cases for several years, this last year I was not able to follow the Court nearly so closely, and probably won’t this year either. My preferred method of following the court was to listen to podcasts featuring audio excerpts from the arguments made in front of the Justices, followed by more audio excerpts from readings of the verdict-opinions and dissents (issued months later), along with any analysis offered by the podcasters. While listening to these podcasts, I found myself impressed by three Justices in particular: Roberts, Kagan, and Scalia (I had actually already long been impressed by the intellect of Antonin Scalia, though I find his demeanor sometimes repulsive). Sadly, I have not been able to find ANYTHING in print collecting the opinions authored by Roberts or Kagan.

I don’t think that even his detractors can argue against the fact that Scalia is a smart fella. Equally obvious is the store-house of legal knowledge he keeps between the ears. Where people disagree is in their approval or disapproval of his votes and opinions, which usually boils down to his adamant support of traditional American freedoms and social mores. I suspect that he has personal and religious reasons for his views, but he also has a legitimate legal rationale for this tradition-bias, which I will get into in the next post.

Scalia is admired by some for the wit he purported displays in his “entertaining” legal opinions, but I personally find his broadsides and banter often annoying and distracting, and not altogether appropriate in tone.

What makes Scalia, to me, the most fascinating Justice (and Roberts and/or Kagan may prove to be his peers; it is too soon to tell), is that he is able to consistently apply a rational and well-articulated philosophy of jurisprudence to American Constitutional law.

Jurisprudence is more art than science. Being a judge is not like being a mathematician; judging cases is not like solving a series of mathematical problems. You can’t simply plug pieces of evidence into a formula, and crank the handle, and churn out answers exact to the umpteenth decimal place.

Of all the legal philosophies I’ve reviewed (none of them being perfect), I find I am most drawn to that of Scalia’s.  His approach seems to me to stand the most chance of being the most right in the most scenarios. At least… ideally…

I bring up this word, “ideally,” because as I’ve pondered Scalia’s approach, I’ve come to believe that his style of legal analysis presupposes the existence of something that America, frankly, doesn’t possess: a properly functioning democracy made-up of rational, ethical, and educated citizens.  What if America’s democracy is too lame to work without activist judges willing get their hands dirty under the hood doing what should ideally be legislative work? 

You see, so many times– so many, many times– when a case winds-up at the Supreme Court, it indicates that somewhere out there in the vast machinery of the great American republic, a social or legal cog is out of order. Most often, the wear-n-tear will show up in the form of a law, or an interpretation of a law, or a company practice which has become outmoded.. Things are not turning out how they should at the end of the line. People are hurting.   Maintenance is needed.  Perhaps even a replacement-part.

Scalia’s view is that, in matters where the law is at fault, the “fix” should typically come from the people, through their elected representatives. If the law is wrong, change it. Other Justices see it as the job of a high judge to jerry-rig fixes or to graft new mechanisms onto old ones, in order to change the output produced by the machine to something more to their liking.

If I am, indeed, becoming more pragmatic and less idealistic with age, then perhaps it is the pragmatist in me who (though the logician and idealist in me rebels at the idea) entertains the notion that the jerry-rigging Justices are actually producing better results than a High Court packed with Justice Scalias would produce. How can I consider this possibility even though it is Scalia’s jurisprudence which I think is the superior legal philosophy?…

It is because, when I look around at our society, I just don’t see the wisdom or gumption requisite for making bottom-up fixes. We seem to have become a species bred for top-down decrees. Asking of us the daily vigilance necessary to keep functioning a thriving, beneficial, and true democracy is like asking a bunny bred and reared to be a fat cuddly children’s pet to survive in the wild.

Gosh, two posts on Scalia, and I have yet to get to the nuts and bolts of his thinking… Okay, NEXT post for sure…


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