Scalia: Too many morally charged questions in court

Tuesday, September 21, 2004

WASHINGTON (AP) -- Justice Antonin Scalia on Monday bemoaned the Supreme Court's willingness to decide political questions such as the death penalty and abortion and predicted as a result a tough confirmation fight for the next nominee.

Scalia, who made no mention of possible retirements on the court, said judicial appointments are becoming increasingly bitter because justices are improperly deciding morally charged questions that are best left to elected legislatures.

"Each year, the confirmation of judicial appointments grows more intense. One shudders to think what sort of turmoil will greet the next appointment to the Supreme Court," Scalia told an audience of 60 at the conservative Ethics and Public Policy Center.

"The lesson is: One way or another, people will have their say on significant issues of social policy ... and judges will be made politically accountable," he said.

In the coming term that begins October 4, the high court will hear several cases involving the death penalty, such as whether states can execute juvenile killers.

Several constitutional challenges to the Partial-Birth Abortion Ban Act are also expected to make their way up to the Supreme Court.

Scalia, who was appointed to the court in 1986 by President Reagan, outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He said unelected justices too often choose to read new rights into the Constitution, at the expense of the democratic process.

President Bush has said if he is re-elected he would appoint justices, such as Scalia or fellow conservative Clarence Thomas, who strictly interpret the Constitution. Scalia also has been mentioned as a possible candidate for chief justice should William Rehnquist, who turns 80 on October 1, retire.

"You want the death penalty? Persuade your fellow citizens" to pass legislation or a constitutional amendment, Scalia said. "You don't want abortion? Persuade them the other way. ... Judges have no more capacity than the rest of us to determine what is moral."

Scalia, however, declined to comment on a House bill that would strip the Supreme Court's authority to hear cases involving the Pledge of Allegiance and whether the words "under God" violate the separation of church and state. The bill, which is expected to be voted on this week, would give that review only to state courts.

Earlier this year, Scalia was forced to recuse himself from a pledge case after complaining in a public speech that courts had gone overboard in keeping God out of government.

"If they're moving through Congress, I probably shouldn't comment on them, and I won't," he said of the legislation.