BOZEMAN – U.S. Supreme Court Justice Antonin Scalia told a Montana audience Monday that American courts too often decide what rights we “ought to have,” when that decision instead should lie with the people, through their elected officials.

Scalia, speaking to more than 300 people at a Bozeman luncheon sponsored by the conservative Federalist Society, said this “inventing” of rights goes directly against his crusade to uphold the U.S. Constitution’s “original meaning” – a cause he said is losing ground.

“We’re now in an age when the high court’s opinions speak of an evolving Constitution,” he said. “It means what it ought to mean. And who decides what it ought to mean?

“Nine lawyers. Actually five lawyers. What, are you crazy? Who would ever set up a system like that?“

Scalia, considered an intellectual leader of the Supreme Court’s conservative wing, said the court’s justices are no better-suited to decide what rights ought to exist than is “Joe Sixpack.”

“These aren’t questions for lawyers,” he said. “These are the kind of questions that society debates and decides.”

Scalia, 77, has been on the Supreme Court since 1986, appointed by then-President Ronald Reagan.

The Federalist Society, a lawyers’ group that emphasizes many of the conservative principles espoused by Scalia, arranged Scalia’s visit here to help like-minded lawyers establish a Montana chapter of the group.

Organizers sold 320 tickets at $30 apiece for the luncheon, selling out the event a couple of weeks after it was advertised in July, said one of its organizers, state Senate Majority Leader Art Wittich, R-Bozeman.

A dozen Republican Montana officeholders attended the event, including Attorney General Tim Fox, who introduced Scalia, and U.S. Rep. Steve Daines.

Scalia delivered prepared remarks for barely 20 minutes, but then addressed questions from the audience for another 40 minutes, talking about everything from Congress to abortion to states’rights.

Many of his comments centered on his cause of interpreting the “original meaning” of the U.S. Constitution and its amendments, which he said spell out clearly defined rights that should not be embellished by the courts.

“I’m just pointing out what happens when you don’t stick to the original meaning of the Constitution,” he said. “The court makes an amazing amount of decisions that ought to be made by the people.”

Scalia referred directly to the right of abortion as defined by the current court, which says states cannot place an “undue burden” on that right.

Five justices now must decide whether certain state laws create that undue burden, he said, and “if you think that’s law, you’re nuts.”

“I do not mean to demean the importance of the question,” he said. “Yes, it’s a hard question, and it has to be decided by somebody. But it is precisely the type of question that should be decided by a Legislature.”

When judges go beyond the original meaning to create rights that aren’t in the Constitution, confirmation hearings for new justices become a forum on which rights the nominee may vote to create, uphold or get rid of, he said.

“The most important question when there is a nomination is not, ‘Is this person a good lawyer,’ ” Scalia said. “It’s, ‘Will this person put in the new rights that I like, and take out the ones I dislike.’ It’s like having a mini-constitutional convention every time you nominate a new justice.”

Scalia also was asked which were the toughest and most-wrenching cases he had decided.

“The toughest was some one or another damn patent case,” he said, to much laughter. “Those are really, really hard. There is absolutely no correlation between the importance of a case and its difficulty.”

On most-wrenching, Scalia thought for a moment: “Wrenching? Well … Is Obamacare too recent?”

The conservative crowd roared its approval of Scalia’s dissent against upholding the health-reform law.

Missoulian State Bureau reporter Mike Dennison can be reached at 1-800-525-4920 or by email at

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