Introduction of Justice Antonin Scalia
by Professor Richard Michael of Loyola University
Robert Jackson, who sat on the United States Supreme Court in the 1940s
and early 1950s, once said, "We are not final because we are
infallible, but we are infallible because we are final." When one
reflects on this fact of finality, one realizes what an awesome power
the Supreme Court's finality constitutes. In a government that
emphasizes checks and balances, the Court is the only branch of our
government that has no external checks. No person or agency can
say that any decision of theirs is incorrect or not binding.
Accordingly, the fact of finality permits the Court to declare as law
what a majority of the Court believe the Constitution and laws require
or what they think those documents ought to require, and, in the name of
interpreting the Constitution, adopt any laws they believe
appropriate. A decision that reflects such lawmaking without
authority in the text being interpreted is an unprincipled decision.
When the power of finality is exercised so as to adopt unprincipled
decisions, it is anti-majoritarian (undemocratic) in that it allows an
unelected branch of government to overrule the actions of the elected
branches and creates a rule of men rather than that of law.
Furthermore, this danger of unprincipled decisions is no imagined danger.
Throughout our legal history many decisions of the Court have in this
manner been unprincipled. Included are the decisions of the 1930s
(now discredited) that incorporated the laissez-faire economics of
Herbert Spenser into the Due Process Clause, seriously impeding the
labor movement and the New Deal of FDR.
More contemporarily, such decisions include the abortion
decision (because nothing in the Constitution prohibits a state from
declaring abortions illegal) and the "one-man-one-vote" ruling (because
nothing in the Constitution requires both houses of a bicameral
legislature to be apportioned on the basis of population).
danger of unprincipled decisions is most acute in cases of
constitutional interpretation because of the generality of many
constitutional provisions and because of the public's tendency to
approve of a decision if they agree with the result, even if the Court
has exceeded its proper bounds in rendering it. They do so perhaps
without realizing this agreement leaves them no defense if in the
future the Court issues an unprincipled decision with which they
Because of the fact of the Court's finality, the checks necessary to prevent
unprincipled decisions must come from the Court itself. The man
we are honoring today, Justice Antonin Scalia, the second senior member
of the Court, has, during his tenure on the Court, led a movement for
principled decisions. Not only has he insisted that decisions be
principled; he has also defined what he deems a principled decision to
be. Such a decision interprets, he says, the language of the text
in issue according to the words used in the document itself (not
regarding any possible intent of the draftsmen) in their context and in
accord with the meaning of these words, at the time they were enacted
Mr. Justice Scalia is being honored today for his intellectual
leadership, clarity of thought, and informed faith. I join those
honoring him today for those reasons, emphasizing his endeavors to
insure principled decisions of the Court.