Describes ‘Dangerous’ Trend
Harvard Crimson, September 29, 2004
By Daniel J. Hemel, Crimson Staff Writer The Supreme
Court’s recent decisions protecting abortion rights, upholding the
legalization of assisted suicide and striking down anti-sodomy laws represent
a “dangerous” trend, Justice Antonin Scalia told a Harvard audience last
night. Scalia held the rapt attention of the jam-packed John F. Kennedy Jr.
Forum last night, although some students and faculty said they were put off by
his conservative judicial philosophy.
In a freewheeling question-and-answer session following
the justice’s prepared remarks, an African-American graduate student
challenged Scalia to defend the constitutionality of racial profiling.
The Kennedy School student, Larry Harris Jr., said that
his Fourth and 14th Amendment rights had been violated when he was pulled over
in Cambridge for—as he put it—”driving while black.”
Scalia was less convinced.
“What the Fourth Amendment prohibits is
‘unnecessary’ search and seizure,” the justice said. “Is it racial
profiling prohibited by the Fourth Amendment for the police to go looking for
a white man with blue eyes? Do you want to stop little old ladies with tennis
The eccentric justice launched into a parody of a police
radio dispatch under a scenario in which profiling were prohibited. “The
suspect is 5’10, we know what he looks like, but we can’t tell you,”
Scalia quipped—drawing laughter from the audience.
Harris was less amused. He said afterwards that “the
flippancy with which [Scalia] dealt with the question was insensitive. It
shows that on issues like this, he might be a little out of touch.”
Earlier in the evening, Scalia ridiculed the European
Court of Human Rights’ 2000 decision striking down British legislation that
bars group gay sex on the grounds that the law intruded upon private life.
He asked—rhetorically—how many individuals would have
to be involved in a sex act for it to no longer qualify as “private.”
“Presumably it is some number between five and the
number of people required to fill the Coliseum,” Scalia joked.
An audience member later rose to ask Scalia “whether
you have any gay friends, and—if not—whether you’d like to be my
“I probably do have some gay friends,” Scalia said.
“I’ve never pressed the point.”
But Scalia said his personal views on social issues have
no bearing on his courtroom decisions.
“I even take the position that sexual orgies eliminate
social tensions and ought to be encouraged,” Scalia said.
“But it is blindingly clear that judges have no greater
capacity than the rest of us to decide what is moral.”
Scalia graduated magna cum laude from Harvard Law School
in 1960 and become the first Italian-American Supreme Court justice in 1986.
He said that jurists should be selected for their
“lawyerly skills and judicial temperament.” But he said that the Court’s
progressive voices had politicized the judicial process in recent years.
Dunster House resident Zachary D. Liscow ‘05 rose
during the question-and-answer session to suggest that Scalia’s own vote in
the controversial 2000 presidential election case could be viewed as an
example of the “judicial activism” Scalia deplores.
“I do not mean by [‘judicial activism’] judges
actively doing what they’re supposed to do,” Scalia responded. He said the
Florida Supreme Court’s decision to order a recount in Miami-Dade County—a
decision Scalia and his colleagues overruled—amounted to a “clear
violation of the federal constitution.”
And while conservative justices have been criticized for
effectively deciding the 2000 election themselves, Scalia quipped: “Would
you rather have the president of the United States decided by the Supreme
Court of Florida?”
While Scalia’s prepared speech—which lasted less than
half an hour—was narrowly focused, his remarks in the 20-minute
question-and-answer question spanned a broad range of topics.
In one of the more bizarre moments of the evening, Scalia
mentioned—in passing—that he thought the 17th Amendment was “a bad
The 17th Amendment provides for the direct election of
The students, faculty and community members who held
tickets to last night’s event were the winners of an online lottery in which
2,016 entrants competed for 850 spots.
The fortunate few who scored seats walked out of the
“That was quite possibly the most eloquent speech I
have ever heard,” said Hurlbut resident Eduardo E. Santacana ‘08.
—Staff writer Daniel J. Hemel can be reached at firstname.lastname@example.org.
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