Scalia Dissents: Writings of the Supreme Court's wittiest, most outspoken justice.

SCALIA DISSENTS: Writings of the Supreme Court's wittiest, most outspoken justice

edited by Kevin A. Ring 

(Washington DC: Regnery Publishing, Inc., 2004).

Hardcover: 256 pages

Reviewed by Philip Ayres

Antonin Scalia was appointed by President Reagan to the United States Supreme Court in 1986 and is widely seen as the most controversial member of that court, though what he believes in is perfectly orthodox: the separation of powers, with Congress making the laws and the courts examining the validity of those laws in the light of the Constitution. Moreover he is an intentionalist, that is to say, he believes in interpreting the Constitution in terms of the intentions of those who wrote it, rather than imposing creative readings upon it that are way out of line with what the framers of the Constitution could ever have intended. It was my privilege and pleasure to drive him around the Great Ocean Road during his visit to Victoria last year.

Here are some samples of his views: "In the eyes of government, we are just one race here. It is American"; "A priest has as much liberty to proselytise as a patriot"; on judicial activism: "No government official is 'tempted' to place restraints on his own freedom of action, which is why Lord Acton did not say 'Power tends to purify'"; on abortion: "It thus appears the mansion of constitutionalized abortion law, constructed overnight by Roe v. Wade, must be disassembled doorjamb by doorjamb". Scalia believes that Roe v. Wade was a bad judgment and that the issue is one for the states--he would return it to them. On what the judicial activists term the "living" Constitution he comments crisply: "I defend a dead Constitution."

Scalia Dissents brings together more than a dozen of Antonin Scalia's most compelling judgments. The editor provides an introductory chapter on "Scalia's philosophy" and an epilogue on "Scalia's America", as well as a helpful background for each judgment. The judgments cover a wide range of controversial issues: interpretation of law, separation of powers, race, abortion, the death penalty, religious freedom, gender equality, free speech, non-speech and un-free speech, homosexuality, and various newly-invented "rights".

The two outstanding qualities of Scalia's writing are clarity and wit, and the best way to demonstrate them is to quote him:

On affirmative action: "Those who believe that racial preferences can help to 'even the score' display, and reinforce, a manner of thinking by race that was the source of the injustice and that will, if it endures within our country, be the source of more injustice still."

On abortion: "The notion that the Constitution of the United States, designed, among other things, 'to establish justice, insure domestic tranquillity,... and secure the blessings of liberty to ourselves and our posterity', prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."

On gender equality: "The tradition of having government-funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law."

On homosexuality: "So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously 'mainstream'".

In Scalia's ideal America, as the editor points out, "The judiciary would seek to interpret the law, not create it.... Democracy would prosper. If the Constitution is silent on an issue, that issue will be returned to the people to make democratic choices for themselves and their communities. Majority votes by citizens, rather than by nine Supreme Court justices, would determine most social policies." The Constitution would not be artificially wrested to refer to mean what it was never intended to mean. Issues on which the Constitution has nothing to say would be left to the states: "Some states would ban homosexual marriage; others might guarantee the right to it in their state constitutions." It would be the same with the death penalty. In such matters "the states would be free to choose, reflecting the desires of the people".