Introduction of Justice Antonin Scalia

by Professor Richard Michael of Loyola University

Justice Robert Jackson, who sat on the United States Supreme Court in the 1940s and early 1950s, once said, "We are not final because we are infallible, but we are infallible because we are final."  When one reflects on this fact of finality, one realizes what an awesome power the Supreme Court's finality constitutes.  In a government that emphasizes checks and balances, the Court is the only branch of our government that has no external checks.  No person or agency can say that any decision of theirs is incorrect or not binding.

     Accordingly, the fact of finality permits the Court to declare as law what a majority of the Court believe the Constitution and laws require or what they think those documents ought to require, and, in the name of interpreting the Constitution, adopt any laws they believe appropriate.  A decision that reflects such lawmaking without authority in the text being interpreted is an unprincipled decision.

     When the power of finality is exercised so as to adopt unprincipled decisions, it is anti-majoritarian (undemocratic) in that it allows an unelected branch of government to overrule the actions of the elected branches and creates a rule of men rather than that of law.

     Furthermore, this danger of unprincipled decisions is no imagined danger.  Throughout our legal history many decisions of the Court have in this manner been unprincipled.  Included are the decisions of the 1930s (now discredited) that incorporated the laissez-faire economics of Herbert Spenser into the Due Process Clause, seriously impeding the labor movement and the New Deal of FDR.

    More contemporarily, such decisions include the abortion decision (because nothing in the Constitution prohibits a state from declaring abortions illegal) and the "one-man-one-vote" ruling (because nothing in the Constitution requires both houses of a bicameral legislature to be apportioned on the basis of population).

     The danger of unprincipled decisions is most acute in cases of constitutional interpretation because of the generality of many constitutional provisions and because of the public's tendency to approve of a decision if they agree with the result, even if the Court has exceeded its proper bounds in rendering it.  They do so perhaps without realizing this agreement leaves them no defense if in the future the Court issues an unprincipled decision with which they disagree.

     Because of the fact of the Court's finality, the checks necessary to prevent unprincipled decisions must come from the Court itself.  The man we are honoring today, Justice Antonin Scalia, the second senior member of the Court, has, during his tenure on the Court, led a movement for principled decisions.  Not only has he insisted that decisions be principled; he has also defined what he deems a principled decision to be.  Such a decision interprets, he says, the language of the text in issue according to the words used in the document itself (not regarding any possible intent of the draftsmen) in their context and in accord with the meaning of these words, at the time they were enacted into law.

     Mr. Justice Scalia is being honored today for his intellectual leadership, clarity of thought, and informed faith.  I join those honoring him today for those reasons, emphasizing his endeavors to insure principled decisions of the Court.