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 shoes?”
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 friend.”
“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. [SEE CORRECTION BELOW]
“But it is blindingly clear that judges have no greater capacity than the rest of us to decide what is moral.”