Justice Scalia’s Dissent

March 2, 2005

Since writing my last post I have glanced through Justice Scalia’s dissent and am gratified that he, too, takes strong issue with the majority’s “evolving standards” rationale. Scalia wrote:

In urging approval of a constitution that gave life-tenured judges the power to nullify laws enacted by the people’s representatives, Alexander Hamilton assured the citizens of New York that there was little risk in this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional judiciary, “bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years–not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed. The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to “the evolving standards of decency,” ante, at 6 (internal quotation marks omitted), of our national society. It then finds, on the flimsiest of grounds, that a national consensus which could not be perceived in our people’s laws barely 15 years ago now solidly exists. Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Ante, at 9 (internal quotation marks omitted). The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

Note the reference, yet again, to the views of foreign courts and legislatures. I didn’t get into that issue in my previous post, choosing to focus merely on the one fine point about evolving standards. But this further underscores the potential horror in the Court not only presuming to set itself as the “sole arbiter of our Nation’s moral standards,” but in basing our Constitution on the shifting sands of moral relativism. Under this standard, there is no predictability, no certainty, no stability in the law — and ultimately in society. The Court’s reasoning, in effect, means that the Court can change any rules it wants at any time merely by the stroke of its majority pen, thereby standing on its head, in the process, hundreds of years of precedent, thousands of years of societal norms, and the decisions of triers of fact and lower courts, both of whom are closer to the facts than the Court could ever be.

What alarms me much more than the Court’s decision is its creeping affirmation of its own unchecked authority. Something has to be done about this Court — about activist judges throughout our system. In fact, it’s time to mention Mark Levin’s book again. We must all buy several copies of “Men in Black” and get this thing circulated as widely as possible. The Court has again just re-asserted itself as a menace to the Republic.