First Among Equals by Kenneth W. Starr Read Free Book Online Page B

to follow principles of
stare decisis
—even if, as with
Miranda,
he wouldn't have agreed with the case to begin with. This, then, is the chief as judicial pragmatist, a respecter of legal precedent, wary of sudden change. He has set the tone of the current Court.
    “He has been called the Arnold Schwarzenegger of the American judiciary.” Graham Zellick, the vice chancellor of the University of London, got the audience's attention with his unexpected, clever introduction of the Supreme Court's most colorful, quotable member. Justice Antonin Scalia had swept into London in the summer of 2000 to make several summertime speeches, this one a dinner address to a human-rights seminar. The next day, he would be moving about London with Lord Wolff, England's highest judge and one of the justice's many friends across the Atlantic.
    As usual, the justice spoke without notes, revealing himself to be the natural teacher he is, witty, clever, and easy to understand. “I hate to be the skunk at the garden party,” he said, obviously relishing the role. He had come from Vienna with a warning. Beware of sweeping statements of human rights, however noble and uplifting, when the enforcement mechanism will be an unaccountable judiciary. The ancient law of England and Wales, which the United States had inherited, was soon to have formally incorporated into it a super-layer of European human-rights law, effective October 2, 2000. The “New Labor” government of Tony Blair had warmly embraced the concept with little debate or discussion. Now the clock was ticking on British control of its own centuries-old body of law.
    The Scalia theme was a familiar one. It transcended national boundaries. Be fearful, he suggested, of putting power in a judiciary—by design unaccountable to the people—to interpret “rights.” Although protecting human rights is a noble goal, judges in interpreting a codified set of “rights” can—and do—fashion social policies that are then removed from the arena of democratic debate. The danger, Justice Scalia emphasized, is fundamental in a democratic society; judicial power tends to rob the people of the ability to decide for themselves how they would live and what kind of society they would have.
    Justice Scalia thus raised the enduring issue before a constitutional court charged with interpreting the meaning of the Constitution. It is on this issue that the justices of the Supreme Court tend, without much open discussion, to divide sharply. Antonin Scalia takes a side in this debate, and he tirelessly trumpets it as he did on a summer evening in London. Of the sitting members of the Court, Justice Scalia has articulated the most systematic view of the way judges should go about interpreting the Constitution. His vision has by no means predominated; this is not the Scalia Court. The Court today is more of a centrist Court, and Justice Scalia is not a centrist. But the Supreme Court—and American constitutional law more generally—has been strongly influenced by his views. Scalia's express aim is to curb judicial power and maximize democratic self-government.
    Although summarized in his remarks in London, the most comprehensive statement of Scalia's philosophy is found in his 1997 essay
A Matter of Interpretation.
His point is simple: The justices of the U.S. Supreme Court inherited a legal culture that we can call, simply, the common-law tradition. That tradition developed in England and migrated to the United States as an integral part of our early legal institutions. Simply put, the idea of the common law is that judges, in the course of deciding cases, develop principles of law that bind not only the parties in the particular case but other judges handling future cases. The judges’ work is, in theory, subject to review and modification by legislatures. As it happened, the decisions of English (and then American) judges were usually left uncorrected. The judges, collectively, thus were able to develop