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Scalia Says SCOTUS Shouldn't 'Invent New Minorities'

By William Peacock, Esq. | Last updated on

Justice Antonin Scalia, as usual, is mad. This time, his wrath is directed at his colleagues and their persistence in making decisions that, he argues, should be left to Congress. In a speech to the Federalist Society in Bozeman, Montana, he told listeners, "It's not up to the courts to invent new minorities that get special protections," reports The Associated Press.

He continued, and possibly foreshadowed the rash of NSA cases headed to the court (the most recent case was punted on standing), by stating, "Of all the three branches, we are the one that knows the least about the nature of the threats to the country, and we have the least ability to find out about it." Scalia, in expressing his distaste for the Court's recent predilection towards trampling Congress, however, neglects to address one significant advantage that the court arguably does have: complete and utter disinterest.

Court as Constitutional Interpreter

The Supreme Court's own website traces the history of the Court as the body vested with the power to interpret the Constitution, beginning with the writings of Hamilton and Madison, which urged adoption of the Constitution and implicitly vested the power of interpretation with the disinterested Court to guard against the rule of interested factions.

Though the Constitution itself doesn't mention the power of the Court to review laws for their constitutionality, that power has been clear since Chief Justice John Marshall said, "It is emphatically the province of the judicial department to say what the law is."

Why the court? They aren't elected. They aren't re-elected. They serve for life. They are beholden to no one, no special interests, and no political whims or popular frenzies.

Court as Dispassionate, Disinterested Decider

It is the court's job to protect minority groups -- even those that the legislature has not yet explicitly delineated. The legislature is, by its nature, beholden to the interests of the majority of the populace (and some might also say, campaign donors). Ditto for the President. The Court owes no such debts and anticipates no such electoral Day of Reckoning.

Where would this country be without Brown v. Board of Education? "Separate [is] inherently unequal" did not come from the laws of the legislature, who turned a blind eye to the problem for centuries, but the pen of a disinterested interpreter of constitutional rights, with the support of eight other justices.

Landmark cases become such by decades of pent up importance and legislative and executive impotence. When civil rights cases, like Windsor reach the Supreme Court, it is only because the legislature has failed to act, or has acted incorrectly, and has forced the hand of lawyers, litigants, and lower courts.

Reactionism or Judicial Activism?

We'd presume that Scalia's issue is with judicial activism. He wants the Court to be reactionary, and secondary, to lawmakers. He's right, but the line between activism and reactionism is thin. One could argue that the Windsor decision was merely a reaction to a law that violated clearly-established Equal Protection principles.

We get it. He's mad about Windsor. He's probably still mad about Lawrence. But the court is simply doing what it has always done: interpreting the Constitution.

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