Mullahs of the West: Judges as Moral Arbiters

Justice Antonin Scalia recently spoke at the Utah State Bar Convention in Snowmass, Colorado.  An intellectual and conservative, he is an originalist, meaning he believes in interpreting the U.S. Constitution and statutes according to their intent and plain or objective meaning.


Scalia decries the politicization of the judge’s role. A judge was once confirmed based on his judicial temperament and intellectual capacity–not his politics. The U. S. Senate confirmed him unanimously. Today, conservatives oppose liberal judges and liberals oppose conservative judges. Aligned against Scalia are those who believe that the U.S. Constitution is a living document and must reflect today’s values.

He criticized Congress for passing vague statutes, leaving the hard work of making the tough policy choices to government agencies. This practice partly arose out of the desire of some to lift the important moral and political questions from the sphere of crass politicians into the rarefied domain of experts in federal agencies. In this way, Congress turned the federal bureaucracy into the “fourth branch of government.”

The elites who want to avoid “dirty” politics have also placed great reliance on the judge, especially the federal judge. Policies on abortion and homosexuality, etc. are grounded in morality.  Nothing Scalia learned in Harvard Law School prepared him to be a uniquely qualified judge of moral issues, issues that derive from the hearts and consciences of the people and their elected representatives. Judges views of morality are no better than those of citizens’ at large.  So who in a democratic society ought to determine natural law, questions of fundamental morality? THE PEOPLE should, with democratic processes, and with public debate. The electorate can differentiate their policies within states and regions, whereas legal opinions have precedence everywhere.

Once judges leave the moorings in the text of the Constitution and statutes, a judge is free to interpret them to reach her desired ends–according to her moral values. Such judges have become moral arbiters, “The Mullahs of the West,” as Scalia sarcastically calls them.

Capital punishment and other laws and practices widely co-existed with the Bill of Rights when adopted in 1789. Still, they are now under attack as unconstitutional. The Constitution clearly allowed such things when it was passed.  If values have changed, then the people may amend the Constitution by public vote to reflect that. When women’s suffrage was in question, people amended the Constitution. Even though they felt they had the weight of morality on their side, advocates for suffrage didn’t think of coming to the Supreme Court.  

By the same token, under the regime of static law, it was not difficult to decide about abortion, homosexuality and assisted suicide. They had been proscribed for decades.  Society could decriminalize that by legislation. But social engineers don’t bother anymore with the difficult process of amending the Constitution; they just take the issue to the courts. The Courts will amend the Constitution for them.  The perfect example is Prop 8.  The people of California voted for Proposition 8 and it passed 52% to 48%.  In 2010, a California District Court judge ruled it was unconstitutional. Just over a month ago, at the conclusion of the appeal process, the Supreme Court of the United States (contrary to Justice Scalia’s dissenting opinion) upheld the ruling; in effect saying that the people’s vote on this moral issue doesn’t matter.  The courts have now decided this moral issue on a national level.

We need judges who are experts in interpreting the law–not rewriting or restating the law to reflect what is politically popular or their own moral or political views. I deeply yearn for more judges who adhere to this judicial philosophy.