Silence please, Justice Scalia Right to die: Speech asserts opinion on matter before the court.

November 04, 1996

IT COMES AS no surprise to anybody familiar with the opinions of U.S. Supreme Court Justice Antonin Scalia that he disagrees with many decisions the court has handed down in recent decades. The 1973 abortion ruling is a good example. Justice Scalia does not believe the right to privacy spelled out in that decision is anywhere to be found in the U.S. Constitution. He has said that plenty of times in speeches.

In recent years, he has been equally outspoken on the right to die. Justice Scalia believes no such right can be found in the Constitution and should not be. He has warned against the tendency to rely on law and legal proceedings to solve complex societal dilemmas.

That's fine. But there's a point when a justice's opinion should come not from a lectern at some speaking engagement, but rather from the bench of the Supreme Court.

Within limits, each justice is free to find his or her own comfort level on the speaking circuit. But the point at which a justice ought to simply shut up on an issue unquestionably arrives when the court has agreed to hear a specific case. The wisdom of this approach would seem to be obvious: Supreme Court justices should give each side the courtesy of hearing their arguments before pronouncing on the matter.

That is as true for physician-assisted suicide as for less publicized cases. Using different reasoning, two federal appeals courts have struck down bans on the practice and the Supreme Court has been asked to tackle the issue. Last month, it agreed to hear the case.

Court observers expect Justice Scalia to take a dim view of these lower court rulings -- as he has every obligation to do, if his reading of the Constitution dictates such an approach. But when the issue is no longer theoretical, when a case with specific facts and arguments is before the court, it is simply bad form for a justice to advertise his views, as Justice Scalia did in an Oct. 18 speech at Catholic University.

Justice Scalia's lack of discretion damages the notion that judges, especially justices of the Supreme Court, are at least willing to hear the arguments in a case before passing judgment.

Pub Date: 11/04/96

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