Justice Scalia on “Self-Righteous” Europe



In today’s Law in Action, on BBC Radio 4, US Supreme Court Justice Antonin Scalia gives a rare interview touching upon a few fascinating legal issues. Justice Scalia is one of the most controversial characters on the US Supreme Court; hailed by conservatives, and abhorred by liberals, for his approach to legal interpretation based on doctrines of originalism and (strict) textualism. This approach is in sharp contrast to the approaches seen in Europe, by for instance the ECJ, where norms of judicial activism are very much alive. Regardless of what one thinks of Justice Scalia he does have some interesting points on the issue of legislation, not just constitutions, being static instruments that do not evolve over time. Similarly, Scalia discusses the use of “smacking on the face” under the “ticking bomb scenario”, which is likely to cause offense. In addition, he has some good points on the appointment of judges in the US, which, he argues, is ultimately not any longer about the lawyerly qualities of a candidate but about politics. However, while discussing the use of the death penalty Scalia argues that the criticism from Europe, levied on its wide use in the US, is self-righteous. Scalia asserts that the death penalty was in use in Europe 30 years ago and that “if Europe had representative democracies that really worked” it would probably still be in place as he claims that opinion polls would show support for it (the death penalty is prohibited through Protocol No. 6 to the European Convention of Human Rights). I am not sure Scalia is correct here (and for the record I strongly oppose the use of the death penalty in all cases). Obviously any outcome of a possible opinion poll would depend on the exact phrasing of the question, and while many people, I think, would be likely to support the death penalty for certain crimes (such as paedophilia), I am not sure that the death penalty would be supported by the people of Europe on a general level. On this point, it is interesting that Scalia claims that the death penalty was outlawed [in Europe] by the “Supreme Court”(!). Hmmm….. Scalia notes that he travels “abroad sometimes” but maybe he ought to swing by the library’s shelves on European law in order to allow himself to be updated on the various judiciaries in place in Europe.

You can listen to the Interview with Justice Scalia here.

Comments

Unknown said…
Thanks for posting the link to this interview Ole.

I'll give a few of my thoughts on Scalia, as he's a figure we had endless discussions on in law school. I think he's a brilliant jurist, and his strict interpretation of the constitution and statutes is an immensely important idea which liberals and conservatives alike need to grapple with. I actually think that it is the nature of US Supreme Court opinions, particularly its strong published dissenting opinions, which accounts for their wide appeal. In my view, those opinions are the best-argued opinions of any court I've read.

My biggest problem with his strict construction argument is Scalia and other judges use strict construction when it suits him, and quickly discards it if it would produce the kind of result he doesn't like.

This was seen acutely in the recent Supreme Court decision striking down school integration programs (mixing races in public schools across neighborhoods) in Louisville and Seattle. Scalia's decisions on affirmative action often ignore this originalism if it interferes with his policy preference.

I also feel that if we followed his originalist approach, this would have undone much of the best work of the Marshall Court during the Civil Rights movement.

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