I have been reading Christopher Scalia and Edward Whelan’s wonderful compilation of the late great Supreme Court Justice Antonin Scalia’s notable speeches in their book, “Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.”[1]  I highly recommend this book to everyone, not just those with a legal background.  All Americans would do well to absorb the words of this modern icon.

This series, beginning with this post will highlight some of the most inspirational speeches found in the book.  Most of us are aware of the distinct character of Justice Scalia’s legal opinions and colorful dissents, but these talks cited here bring us to understand the very heart of Justice Scalia. Many of these speeches have been very moving to me.  Today’s post will focus on the speech “The Vocation of a Judge” that the late justice gave in Peru in 2007.  It is a timeless lesson and should help shape our perspective on how to view judges as guardians of the law.

Justice Scalia breaks down his speech into emphasizing three important qualities that reflect a good judge. First, he explains judges recognizing their role as servants of the law.  Second, judges should use a neutral, objective decision-making process that is dictated by the traditions of the legal system when deciding cases.  He calls this principle scholarship.  Third, he encourages judges to exercise appropriate demeanor to the parties that come before him, rooted in fairness and inspiring confidence from the public of the process undertaken to reach the result.

First, as servants of the law Justice Scalia emphasizes that personal biases of the judge should not come in the way of a proper evaluation of the legal texts and facts presented to decide the matter at hand.  In this speech he focuses on the personal biases of some judges for or against capital punishment and how their perspective should not end legislative debate through an errant ruling.

Scalia’s concept can also be viewed in the marriage and abortion contexts in the modern day. The Supreme Court’s decision on the definition of marriage in Obergefell v. Hodges silenced the voice of democracy and valid legislative debate on the issue. Some states were in favor of expanding the definition, while others were not and each state had valid reason to turn to their people and legislatures to decide the issue.  In abortion, when considering the Roe v. Wade decision in 1973, the question of its legal prowess could have been maintained in the state context through state law and amendments to state constitutions through referendums if necessary.  One may contemplate the degree of personal biases in both these decisions and question if the reasoning reflected that of good judging.

 Second, Justice Scalia considers an objective and neutral decision-making processes as necessary to be undertaken by judges in order to reach conclusions on the legal matters presented to them. A judge should be consistent with his interpretive style and not veer off course too often in order to reach a desired outcome.  There must be a distinction between natural inclinations and the duty presented to judges to fairly interpret the law based off objective authority and rooted within the confines of the Constitution.

An example that comes to mind would be a jurist that is devout in his faith tradition during his personal life.  It is acceptable to have formed a personal perspective on a major issue.  However, when the judge is presented with facts in a case the outcome reached should not come as a result of his theological belief on a major topic, but rather his interpretation on what the Constitution has presented or not presented on the issue.  It would be the expectation that perhaps the Federalist Papers would be cited rather than the Catechism of the Catholic Church when composing a majority opinion.

Third, Justice Scalia considers the presentation of a judge to the parties in court.  The parties should not feel a sense of discomfort or fear that they will not be given a fair evaluation of their legal arguments.  This is why it is very important when judges give interviews or public statements on personal perspectives they should strive to not espouse a sense of unfair bias when considering issues that might be considered in the cases presented to them.

The people of the nation must trust the process and have confidence in the judiciary.  The judiciary is the check on legislative and executive overreach.  However, Justice Scalia does explain that this does not mean that a judge should be making a decision for the sake of popularity or being heralded as a social icon because of the outcome reached.  No, he finds that the judge who may go against the societal tide should accept and embrace rejection from louder figures because he took an oath to defend the Constitution, not answer to the people like politicians. This is a very important message and all too often when reviewing Supreme Court history, we read decisions that seem to hint at reputation building rather than Constitution preserving.

Lastly, Justice Scalia provides an interesting assessment on the roots of judicial activism. He finds that emphasis in the first year of law schools on teaching common law, which is judge made law, begins to form a pattern in the mind of the young student that a judge who creates the best rule is the ideal judge. He used the example of the notable Palsgraf v. Long Island Railroad Company case where there are great distinctions in the majority opinion of Judge Cardozo vs. the dissenting opinion of Judge Andrews when evaluating the case.  Both of the methods used are debated to this day on which was the best rule to apply to the negligence issue presented in that case.

Justice Scalia, argues in contrast, that the laws in which he is mainly tasked with assessing include acts by Congress and interpretation of the Constitution itself.  Our legal system is not based in common law, rather it simply serves as a guide.  This principle applies to many levels of the judiciary such as state courts where commonly statutes are interpreted.  Statutes are laws passed by a legislative entity.  The United States Constitution and the various state constitutions were not created by judges.  Justice Scalia calls on judges to stay within their confined authority when embarking on their judicial career.  The concept of a judge should not be introduced to the next generation of legal minds as a lawmaker, this develops an unhealthy pattern of legal interpretation.

Overall, this speech was inspiring and Justice Scalia provided several interesting lessons on how to evaluate good judging and its vocation.

[1] Christopher J. Scalia and Edward Whelan, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (2017).