Tonight I attended a lecture by Justice Antonin Scalia, entitled The Courts and Democracy, hosted by the Ethics and Public Policy Center here in Washington, DC. Scalia hit on a number of his usual themes: the dangers of a living Constitution, the tension between democracy and expansive judicial interpretations of the Constitution, etc. But I was interested in the degree to which his vision was essentially pragmatist, or to be more specific, formalism justified by pragmatism. Here’s my best recollection of his basic argument, along with a few comments.
Scalia began by discussing how in the late 19th and early 20th century, it was broadly believed that the problems of a complex industrial democracy needed to be resolved by “experts.” If only you could have an “expert” resolve difficult questions, people figured, then you could get a neutral nonpolitical answer to difficult political questions. In time we have realized that this doesn’t work, Scalia noted. Political questions often boil down to policy preferences, and experts have no greater insight into the “right” policy preferences than any one else. These are questions with no right answer, and experts have no advantage in resolving them.
Scalia then suggested that our faith in judges today is similar to our faith in experts decades ago. We expect judges to have answers to the great moral questions of the day. The trouble is that judges are not moral experts; they are just lawyers. Judges can dress up moral judgments in a legal opinion in a way that seems very impressive. The form of a legal opinion can create an illusion of expertise in the question (this is my language, not Scalia’s). But in fact judges have no greater insights into moral questions than anyone else. Scalia went on to discuss some of the provisions of the European Union human rights laws, which task judges with enforcing broad moral standards. The difficulty with this approach, Scalia suggested, is that it presupposes that judges have special insight into morality. Because judges do not have any special insights into such questions, it is better to leave them to the democratic process. Scalia then went on to discuss the benefits of an originalist approach to constitutional interpretation; among those benefits was that it did not embroil judges in all sorts of moral questions that they had no ability to answer.
I haven’t read all of Scalia’s writings, but my sense is that his rationale for judicial restraint in the context of moral questions was more pragmatist than his usual approach. That is, Scalia didn’t say that courts should defer to the democratic process in the context of moral questions because for better or worse the Constitution commands it. Primarily he argued that courts should defer because they are institutionally poorly equipped to resolve those types of questions. This may be my quirky and idiosyncratic reaction to Scalia’s address — if any VC readers were present and think I am mispresenting Scalia’s speech, please contact me — but I found his reliance on pragmatist themes a bit surprising.
I don’t think the lecture will be broadcast or published, but there were a number of journalists present who I gather will be filing reports shortly.
UPDATE: Here is Hope Yen’s Associated Press story on the speech. It doesn’t mention legal theory. Go figure.