In preparing last night to talk in class about theological and legal approaches to abortion today, I got to read again Justice Scalia's dissent in Casey v. Planned Parenthood, the 1992 decision that reaffirmed, while somewhat modifying Roe v. Wade. It's an entertaining read, but one passage in particular is pertinent to the issues raised by Judge Sykes regarding the Wisconsin Supreme Court. If judges are going to second guess legislatures and substitute their policy judgments for that of the political branches, they will increasingly be seen as politicians and subjected to political pressures. Scalia notes that, since the U.S. Supreme Court has embarked on the project of finding fundamental "liberties" not expressly stated in the text of the Constitution, people have seen it in a different and more political light:
What makes all this relevant to the bothersome application of “ political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here-reading text and discerning our society's traditional understanding of that text-the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation **2885 ceremonies, Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value *1001 judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school-maybe better. If, indeed, the “ liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours
Good writing. Even better thinking.