Sunday, March 19, 2006
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