Justice Scalia's quotes:
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I am questioning the propriety, indeed the sanity, of having a value latent decisions such as this made for the entire society and, in the case of Europe, for a number of different societies by unelected judges. (I.S.: ‘Unelected’ - approved by Senate or by Parliamentary Assembly of the Council of Europe. Scalia does not count this as elections. Imagine the case, where Supreme Court judges themselves approve the new members 🙂) ... Surely it is obvious that nothing I learned in my law courses at Harvard Law, none of the experience I acquired practicing law, qualifies me to decide whether there ought to, and hence is, a fundamental right to abortion or assisted suicide.
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One of the checks upon judicial power that the framers inserted into the American Constitution was precisely the appointment of judges in a highly visible and highly political fashion. So that judicial appointments can be an important issue in the presidential election when the court begins to enter fields of general social policy.
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I think the difference is that the American people have figured out that it's not terribly important to have a good lawyer. I mean it's nice, if your justices are good lawyers but the most important thing is to have a justice who's going to write the kind of new constitution that YOU like.
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If your courts were making the kind of fundamental social policy decisions that our courts have been making for the last 35 years, the people would begin to understand that they have to take a role in the policy selection of the judges. ... they will understand that you are dealing here with an institution that doesn't know any more than you know about whether suicide is good or bad or should be allowed or disallowed, and yet is imposing its judgment upon the entire society.
- So you predict that the same will happen in Europe and especially with the European Court of Human Rights?
- Only because I have great confidence in the democratic instincts of the European people.