Justice Scalia and Roe v. Wade

Having covered hundreds of events as a reporter, I know that my account of a City Council meeting, a convention, a speech or anything else requires that I select and compact. That's why it's essential to be careful with stories about the keynote speech Justice Antonin Scalia gave Tuesday at Villanova Law School's Second Annual John F. Scarpa Conference on Law, Politics & Culture.

I'm not worrying about reportorial bias, necessarily. It's just a recognition that when a journalist picks out a handful of quotes and paraphrases the rest of what Justice Scalia said on the question of "The role of Catholic faith in the work of a judge," it has to be taken with several grains of salt. (Justice Scalia's hour-long lecture was part of a symposium titled "Avoiding Dogmatism on a Disputed Question.")

There are a couple of quotes that I suspect could be misunderstood if taken outside the larger context, so I'll skip them. My intuition is that a paraphrase in the Associated Press story may well have gotten the gist of what he was saying. Scalia, according to the AP, "said his job is only to determine the intent of the Constitution's framers, not to contort the text to fit his religious beliefs."

Scalia described himself a "textualist." As he once wrote, the Constitution "means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." There is "plenty of room within this system for 'evolving standards of decency,'" he wrote, "but the instrument of evolution…is not the nine lawyers who sit on the Supreme Court of the United States, but the Congress of the United States and the legislatures of the fifty states…"

That is why Scalia said what he said yesterday in Philadelphia (a reflection of what he has consistently said for decades): that he opposes Roe not on theological grounds, but because, according the Philadelphia Inquirer, "The reality is that the Constitution says nothing about abortion either way and the states are therefore allowed to permit it or to prohibit it."

The courts have no business legislating from the bench. As Justice Scalia said in his blistering dissent in Planned Parenthood v. Casey, the Supreme Court "should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."

Please send your comments and questions to Dave Andrusko at daveandrusko@hotmail.com.