1 of 2
Kristin Murphy, Deseret News
U.S. Supreme Court Justice Antonin Scalia delivers his keynote address at Utah State University's conference "Freedom and the Rule of Law" today in Logan.

LOGAN — The legality of abortion, same-sex marriage and other controversial issues should be decided by the American people and not a panel of unelected judges, U.S. Supreme Court Justice Antonin Scalia told students and faculty at Utah State University on Monday.

A shift in political practices in recent years, however, has left judges to legislate from the bench as they rewrite the Constitution, the judge said.

"A change occurred in the last half of the 20th century, and I'm sorry to say that my court was responsible for it," Scalia said. "It was my court that invented the notion of a living Constitution" to keep up with what some justices call "the evolving standards of decency that mark the progress of a maturing society."

The keynote speaker for a two-day conference on freedom and the rule of law, Scalia was passionate as he outlined the role he believes the nation's top court should play. Known for his trenchant and entertaining written opinions, Scalia did not disappoint as an orator, earning laughs and applause from the crowd of 1,700.

"He's the closest thing, I suspect, to a rock star in the entire judicial business," said 10th Circuit Appellate Judge Mike McConnell, who some experts believe could end up serving on the bench with Scalia at some point.

The evolution of the Supreme Court's duties has occurred even as Scalia has served in his current position, the justice lamented. President Ronald Reagan nominated Scalia for the Supreme Court in 1986, and Scalia was confirmed by a 98-0 vote — something that may never happen again as politics continue to make their way into the nomination process.

"That was in a day before the people had come to understand what was afoot in the Supreme Court," Scalia said. "They thought the name of the game was to pick good lawyers who could read a text and understand its history."

Now, as John McCain and Barack Obama stump for votes, vying for a presidency that could see as many as three appointments to the country's top court, the candidates promise moralist judges who will walk a party line on hot-button issues such as abortion and homosexual marriage.

"It seeped into the political consciousness of the people that what is going on is a refashioning of the Constitution from term to term," Scalia said. "We're conducting a mini-constitutional convention every time we select a new justice on the Supreme Court."

At the crux of the problem is the idea of a "living Constitution," said Scalia, a self-described "originalist."

"Why have judges not always been such pioneer policy makers?" he asked. "The answer is that until relatively recently, the meaning of laws, including fundamental laws, were thought to be static."

Scalia said judges possess no greater ability to determine what is moral than "Joe Six Pack."

"Value-laden decisions such as that should be made by an entire society ... not by nine unelected judges," he said.

Anthony Peacock, an associate professor of political science at USU, said Scalia framed an important discussion for students at the university.

"What did the founders understand about liberty?" Peacock asked. "Students just aren't familiar with that."

The two-day conference featuring lectures by legal minds from across the nation wraps up today in Logan.


E-mail: afalk@desnews.com