U.S. Justice Scalia: Leave Policy to the Policy-makers

Judges are not experts on policy, and they should not make decisions on questions of values and morality over which the public is divided, U.S. Supreme Court Justice Antonin Scalia said in a lecture at Tel Aviv University yesterday.

Scalia is one of the leading members of the "strict constructionist" school of interpretation. This school, which is still in the minority on the U.S. Supreme Court, stresses the precise language of the constitution and the original intentions of its framers.

Originally a professor of law at the University of Chicago, Scalia was appointed to the Supreme Court in 1986 by then-president Ronald Reagan. His rulings reveal him to be a devout conservative: He has ruled against a liberal approach to abortions, against affirmative action, and for the death penalty. The latter ruling reflects his reliance on the framers' intentions: The founding fathers, he said, did not view the death penalty as cruel and unusual punishment, so the court has no legal basis for forbidding it today.

But his strict constructionism also sometimes leads him to take classic liberal positions: He was part of the five-four majority that voted to overturn a law outlawing flag-burning, because he viewed flag-burning as a symbolic form of speech, and therefore, protected by the First Amendment.

Scalia does not view the American Constitution as a "living document" that should be interpreted according to the spirit of the times - in sharp contrast to the prevailing approach in Israel, which holds that laws should be interpreted according to society's current values rather than its values when the law was passed.

But while he declined to comment specifically on Israel's public debate over judicial activism, some of his comments on the American situation were clearly applicable to the local debate as well. One example is when he argued that questions of values and morality, like questions of policy, have different possible answers. As a result, decisions on these issues should be made by the people, via their elected representatives, rather than by unelected Supreme Court justices. Policy, he said, should be left to the policy-makers; the judge's preferences should be irrelevant.