In defence of Scalia

Scalia’s Utter Moral Failure Exposed –

While I oppose the death penalty and consider it reprehensible for ordinary criminal law cases, I consider it my duty as a lawyer to defend the bench from unfair criticism.

Judges are not the final arbiters of right and wrong. 

They are not supposed to be in our system, nor should any unelected official with life tenure have the power to settle such matters based on his own philosophy.

Judges are given a framework and have a duty to follow it.  They are not vested with unlimited discretion to right all of the real or perceived wrongs in the world.

Changing the framework is what we elect people for.  If the reps aren’t getting it done, vote them out so they can go back to the banjo and duck hunting.

Turning the swing vote on the Supreme Court into an effective kingship with unlimited powers is not the solution to our problems.

In the absence of a genuine constitutional issue or similar fatal flaw, the elected goverment is entitled to do as it sees fit, including embarking on paths that are entirely misconceived or mistaken.

There are benefits to Scalia’s approach.  For instance, he upheld environmental laws and struck out the positions of gay marriage opponents for lack of standing.   A good judge will from time to time uphold something that may go against his own philosophy.

The constitution is more important than any one issue.  It should not be contorted to support a position on every issue.

The death penalty in regular justice (as opposed to e.g. war situations) is wrong.  It’s misconceived.  It’s almost inevitably going to lead to the executions of some innocent men. 

But that doesn’t make it unconstitutional.  I don’t see any way to make it unconstitutional in all cases without the kind of contortions that judges ought not to be doing. 

War results in death of innocents with even greater certainty, that doesn’t make it unconstitutional. 

The potential for harming innocents is a reason why the death penalty should be banned in the appropriate forum, not why it should be found unconstitutional.

And if there is no constitutional breach, nor any error below, it is the duty of the appellate judge to not intervene.

It is NOT the place of that court to be the final arbiter of right and wrong.  We don’t need judicial emperors.


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