The Justices in the Supreme Court majority today, while repeating Antonin Scalia’s cries, are doing precisely what he claimed to loathe: they’re ruling like kings.
was still a law professor at the University of Chicago, the American Enterprise Institute invited him to a panel called “An Imperial Judiciary: Fact or Myth?” On his side of the table was Laurence Silberman, who had been Richard Nixon’s Deputy Attorney General; across from them sat the executive director of the American Civil Liberties Union and a Harvard Law professor.
Scalia also advocated for judges to develop strict rules that would tie them down rather than flexible standards that called on courts to balance interests and weigh various factors. “If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite,” he wrote in a 1989 article called “The Rule of Law as a Law of Rules,” “I will be unable to indulge those preferences; I have committed myself to the governing principle.
When Scalia started teaching at the University of Chicago, he was lonely. “You could fire a cannon loaded with grapeshot in the faculty lounge of any law school in the country and not strike an originalist,” he said. This changed. While Scalia evangelized his methods on and off the bench, a small group of conservative law students he’d helped advise as a professor, called the Federalist Society, was becoming the country’s most powerful legal organization.
Dobbs and Bremerton stressed the importance of straitjacketing judges. But these were far from restrained decisions—as evidenced by their divergence from centuries of proposals for taming courts. Scalia was not the first to realize the danger of giving judges the power to interfere with democratic legislation.
Scalia’s philosophy of restraint was born in dissent. While the Court’s majority reached expansive conclusions that pleased liberals, he got to cry that they were heady and imperious and needed to be brought down to earth. Even if you thought he was smug, intolerant, and wrong-headed, at least you could see where he was coming from. That nine unelected lawyers have the power to shape our nation’s social order should unsettle us all.
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