The difference between abortion and the death penalty is quite simple - it is the difference between taking an innocent as opposed to a guilty life, conservative US Supreme Court Justice Antonin Scalia told an audience in UCD last night.
Declaring during a question and answer session that he would resign if he were to find that Catholic doctrine prohibited the death penalty, Justice Scalia added that justice was not just about deterrence, but also about punishment. It was the view of many US states that justice required the death penalty, he said.
Introduced by Supreme Court judge Mr Justice Adrian Hardiman, who chaired the event, as a "constant critic" of the temptations of the US Supreme Court to extend its own powers, Justice Scalia said a previous widely held belief in the role of the expert has been replaced by belief in the "judge as moralist".
He said he did not have to prove that "originalism" - assuming that a fixed set of meanings was locked into the constitution at the moment of its adoption - was perfect. Instead, he had to prove that it was better than anything else out there.
Asked about the Supreme Court's decision in the 2000 presidential election - which ultimately led to the appointment of George W Bush as president of the United States - he acknowledged that the decision to bring an end to the recount was a judicial policy decision.
But he said this was quite different to decision-making on issues such as abortion. He said it was seven years ago and told those present to "get over it".
The court had said "enough is enough," and analysis by newspapers - not Republicans - had shown the Democratic contender, Al Gore, would have lost the election anyway, he claimed.
In a wide-ranging address to the audience of more than 600 people at the O'Reilly Hall in UCD, Justice Scalia, who is a hunting partner of US vice-president Dick Cheney, argued that there is an increasing emphasis on the "judge as moralist".
This was evidenced, for example, in the fact that the courts were asked to adjudicate on "value-laden" issues such as a woman's right to abortion, and same-sex marriages. Society has become addicted to "abstract moralising", but this becomes a "dangerous object" when moralising is required to be judicially enforced, he said.
The emergence of a concept of a "living" as opposed to "static" constitution meant the world, or at least the West, has arrived at a stage of "judicial hegemony", he warned. But there was no reason to believe that someone trained in law was better placed than, for example, a medical doctor or ordinary member of the public to make such judgments.
The increased politicisation of judicial appointments in the US meant that frequently the criteria employed would have less to do with legal ability, or standing in society, and more to do with "looking for people who agree with us", on an "annually revised constitution".
Justice Scalia has previously dissented vigorously against Supreme Court rulings in favour of gay rights and against the juvenile death penalty.