ORANGE, Calif. – U.S. Supreme Court Justice Antonin Scalia (search) blasted what he called "judge moralists" and the infusion of politics into judicial appointments Monday after joining law students in a re-enactment of a 100-year-old landmark case.
Speaking before a packed auditorium at Chapman University, Scalia said he was saddened to see the Supreme Court deciding moral issues not addressed in the Constitution, such as abortion, gay rights and the death penalty. He said such questions should be settled by Congress or state legislatures beholden to the people.
"I am questioning the propriety — indeed, the sanity — of having a value-laden decision such as this made for the entire society ... by unelected judges," he said.
Scalia also railed against the principle of the "living Constitution," saying it has led the Senate to try to appoint so-called politically "moderate" judges instead of focusing on professional credentials and ability.
"Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?" he said, to laughter and applause.
Scalia didn't make any direct references to the looming confirmation battle for Supreme Court nominee John Roberts, but he did allude to it.
"Each year the conflict over judicial appointments has grown more intense," he said. "One is tempted to shield his eyes from the upcoming spectacle."
Earlier in the day, Scalia was much less serious while re-enacting the landmark 1905 Supreme Court case Lochner v. New York (search) with five recent law school graduates, three undergraduates, California Attorney General Bill Lockyer and a Chapman professor.
The original court ruled that a state law limiting bakers' hours violated a bakery owner's liberty and right to due process. On Monday, however, the mock justices overturned that decision in less than 30 minutes of debate.
"There will be no majority opinion. This will be one of those unpublished opinions that will not be citable before the Supreme Court," Scalia, who played the role of Chief Justice Melville Weston Fuller, joked after announcing the students' decision.
The debate was lighthearted, as participants made jests on topics ranging from Scalia's Italian heritage to his reputation as a die-hard constitutionalist.
Professor John Eastman, who played the role of Lochner's counsel, argued that the state law had been sponsored by German union members who wanted to prevent competition from harder working Italian immigrant bakers.
To that, Scalia replied "Mama mia!"
The re-enactment was part of a full day of activities for Scalia, who was at Chapman to help the university celebrate the 10th anniversary of its law school.
Chapman has a tradition of inviting distinguished jurists to re-enact important Supreme Court cases on their anniversaries, including Brown v. the Board of Education and Marbury v. Madison. Earlier Monday, Scalia taught a constitutional law class.