Judiciary – The Tipping Point
by Stuart Taylor, Jr.
Justice Antonin Scalia’s demeanor was charming, his delivery witty. But his message was serious, and some of his words were blunt. Scalia’s subject at an April 18 symposium hosted by Michigan State University in a Washington hotel was "judicial activism." The 64-year-old Reagan appointee’s main targets were "the liberal [Supreme] Court of the `60s and `70s"-which he said sometimes used "phony and disreputable" reasoning to distort the meaning of laws-and the U.S. Congress of more recent years, which he accused of "legislative activism." And his conclusions went to the fundament of our constitutional system.
Countering academic critics who have turned the old imprecation of activism against Scalia and his conservative colleagues, Scalia said that "the current Court is considerably less activist … than the Court of a few decades ago." He acknowledged that "conservatives are just as willing to play this game as liberals are now," and that "we are striking down as many federal statutes from year to year as the Warren Court at its peak." But he noted that the Court has been voiding fewer state and local statutes than it did in previous decades. And he stressed that most federal and state laws that have fallen lately have "involved attempts by a legislature to do something quite novel and often even downright bizarre." He lingered on "bizarre."