Scalia Schools The ACLU On The Bill Of Rights

Scalia debates head of ACLU on TV

Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions.

Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with
American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues.

Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach."

"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said.

"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.

Strossen countered that such a legal approach would have barred the landmark 1954 ruling in Brown v. Board of Education, a unanimous decision outlawing racial segregation in public schools.

"There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be," she said. "And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable in the electoral process — namely federal judges?"

The ACLU debate comes as the Supreme Court this term will hear closely divided issues involving partial-birth abortion and school integration. They are expected to test the conservative impact of the court's two newest members, Chief Justice John Roberts and Samuel Alito.

Scalia, 70, has consistently voted to limit the use of race in school admissions and has called for the 1973 Roe v. Wade decision establishing a woman's right to abortion to be overruled. But his influence was often limited by moderate Sandra Day O'Connor, who cast deciding votes on those issues against him.

With O'Connor now retired and Alito succeeding her, Scalia — whom President Bush passed up for chief justice — will have new opportunities to sway his new colleagues and centrist Anthony Kennedy closer to his viewpoints.

During Sunday's debate, Scalia outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He reiterated that race has no place in school admissions, a viewpoint that put him on the losing side in 2003.

"The Constitution very clearly forbids discrimination on the basis of race," Scalia said in response to a question by moderator Pete Williams of NBC. "It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

Scalia, who marked his 20th anniversary on the court last month, generally finds himself taking the opposite position to the ACLU. Most notably, he wrote a majority 5-4 opinion last term giving police more leeway to enter private homes.

He also unsuccessfully sided with the government in cases where the court struck down Ten Commandments displays in Kentucky courthouses and declared that the military commissions President Bush established to try suspected al-Qaida members were unconstitutional.

But during Sunday's debate, Scalia noted there were cases in which he and the ACLU agreed. They included rulings upholding flag burning and a 2004 opinion arguing that a U.S. citizen seized in
Afghanistan in wartime could challenge his detention as an enemy combatant in U.S. courts.

Strossen, who enjoys a friendly relationship with Scalia despite their differences, applauded those opinions but added, "I don't want you to think you're too popular with this group."

"I'm very distressed about your failure to find protections in the Constitution for the right of consenting individuals in their homes to decide what they see and read, and what type of sexual relations they have," she said as hundreds of ACLU audience members cheered.

Scalia, who has at times had a prickly relationship with the media, agreed to have C-SPAN televise Sunday's event live — a more recent accommodation as the court begins to show greater signs of openness under Roberts.