IT WAS AT a black-tie dinner in Washington in 1985 that Washington Redskins running back John Riggins boozily gave one of his table-mates, Supreme Court Justice Sandra Day O'Connor, a memorable piece of advice: "Come on, Sandy baby, loosen up. You're too tight." Riggins then passed out, snoring his way through a speech by Vice President George H. W. Bush. Soon after, O'Connor began attending her morning exercise class in a T-shirt reading, "Loosen up with the Supremes."
That indelible moment in Supreme Court history came to mind the other night when Justice Antonin Scalia, speaking to supporters of the New England School of Law at a banquet in Boston, allowed as how he was prepared to "accept for the sake of argument that sexual orgies eliminate tension and ought to be encouraged." Loosen up with the Supremes, indeed. It's not every day that one gets to hear a justice of the Supreme Court share his view of orgies. A latecomer entering at that moment might have thought that Scalia was explaining what it really means to be one of the high court's "swing voters."
In fact, he was making a serious point about democracy and the blight of "judicial hegemony" undermining it. In case after case, the people's right to decide difficult questions of social policy democratically has been usurped by judges who fashion constitutional mandates out of their own moral preferences. Scalia cited a case dealing with an orgy not just to make sure that nobody would be snoring through his speech, but to illustrate what happens when "abstract moralizing" turns into judicial compulsion.
Article 8 of the European Convention on Human Rights declares that "everyone has the right to respect for his private and family life" -- a sentiment no reasonable person would disagree with. But six years ago, that provision was invoked to strike down a British law banning group sex. A European court held that the conviction of a man who had been involved in a five-person orgy violated his right to respect for his private life.
The problem with that ruling, Scalia said, isn't that sexual orgies are a social ill -- one might even argue that they "ought to be encouraged." The problem is that unelected judges had no business deciding that question. In an open democratic society, it is the public that should be making such value judgments. That is what elections and legislatures are for.
And where did European courts get the idea that it was up to them to make binding policy on controversial moral subjects? From the US Supreme Court, which in recent decades has maintained that the Constitution is a "living" document whose meaning evolves over time, and that it is judges who are to decide when there has been an evolution and what that evolution requires.
But for most of American history, observed Scalia, it was understood that the Constitution's words were to be read in the light of the Framers' intent and the nation's legal traditions -- the whole point of putting the words in writing was to prevent fundamental change, not to facilitate it. For the Constitution to say something new required an affirmative democratic act: an amendment. Judges could not unilaterally give the text a meaning it had never had before. That is why it took the 19th Amendment to extend the vote to women in 1920, even though the Constitution already provided for "equal protection of the laws." If the Equal Protection Clause didn't guarantee female suffrage when it was adopted, it didn't guarantee it in 1920, either. Only the people could change that fact, not the courts.
These are not new arguments, of course. But it is one thing when politicians and pundits deplore activist judges who claim to discover rights in the Constitution that had lain undiscovered for 200 years. It is something different when a jurist of undoubted brilliance declares flatly that "judges are unqualified to give the people's answer to moral questions." Does a woman have a natural right to an abortion? May someone be helped to take his own life? Should a jury sentence a mentally retarded murderer to death? Such dilemmas are inescapably political, and the more judges presume to resolve them from the bench, the more politicized the judiciary becomes. Hence the bile and bitterness that now drench the judicial nomination process.
Twenty years ago, Scalia's nomination to the Supreme Court was approved by a unanimous Senate. Today, he says, a judge with his views -- a judge who believes that social policy should be made democratically, not dictated from on high -- could not be confirmed. That is something every democrat -- small "d" -- should regret.