As a result, judicial selection has become mired in a political snakepit because people expect new appellate judges to "rewrite" the U.S. Constitution and make policy decisions that are normally the purview of the executive and legislative branches of government.
The cure is for Americans to view the Constitution as a "static" document and hire jurists who confine their role to interpreting it, he said at Utah State University's Taggart Student Center, where 1,700 people packed a ballroom and overflow seating. If you want to abolish an old law or establish a new right, he recommended, talk to your legislature, write a letter to the editor, try to persuade your fellow citizens. Just don't file a lawsuit.
Scalia gave the keynote address at the inaugural conference of the Project on Liberty and American Constitutionalism, launched by USU's political science department to bring attention to the nation's founding principles.
"There's a dearth of programs, particularly in the West, that educate on the founders' ideas on limited government, personal liberty and a strong national defense," said political science professor Anthony Peacock.
Scalia's "originalist" views - that the Constitution has a fixed and knowable meaning established at the time of its drafting - was an ideal fit for Peacock's two-day program, "Freedom and the Rule of Law." Nominated in 1986 by President Reagan, the outspoken Scalia is now the high court's second most senior justice. He has also been its most "illiberal member" and a judicial "rock star" thanks to his robust intellect and memorably derisive dissenting opinions, said Judge Mike McConnell, a President George W. Bush appointee to the 10th Circuit Court of Appeals and a University of Utah law professor.
"He votes in accordance with his principles as opposed to the results," McConnell said in introducing Scalia.
The nation's legal landscape started getting swampy in the 1930s when Americans began empowering regulatory agencies to fix a broken economy, Scalia said. This has been an abject failure because policy questions, like how many radio stations one entity can own or what railroads should charge to haul municipal trash, do not have right and wrong answers, he added.
"These are social preferences that can only be handled in a political process," he said. Many of these regulatory agencies have been abolished, but Scalia sees the rise of a new threat: the judicial moralist.
"I'm questioning the sanity of having value-laden decisions being made by unelected judges," he said. "Nothing I learned at Harvard or in my practice of law qualifies me to decide whether there is a right to abortion or to assisted suicide."
