Cite as: 531 U. S. 57 (2000)
Scalia, J., concurring in judgment
result of compromise among various interest groups, resulting in a decision to go so far and no farther. One can, of course, summon up a parade of horribles, such as an arbitration award ordering an airline to reinstate an alcoholic pilot who somehow escapes being grounded by force of law. But it seems to me we set our face against judicial correction of the omissions of the political branches when we declined the power to define common-law offenses. See United States v. Hudson, 7 Cranch 32 (1812). Surely the power to invalidate a contract providing for actions that are not contrary to law (but "ought" to be) is less important to the public welfare than the power to prohibit harmful acts that are not contrary to law (but "ought" to be). And it is also less efficacious, since it depends upon the willingness of one of the parties to the contract to assert the public policy interest. (If the airline is not terribly concerned about reinstating an alcoholic pilot, the courts will have no opportunity to prevent the reinstatement.) The horribles that can be imagined—if they are really so horrible and ever come to pass—can readily be corrected by Congress or the agency, with no problem of retroactivity. Supervening law is always grounds for the dissolution of a contractual obligation. See Restatement (Second) of Contracts § 264 (1979).
In sum, it seems to me that the game set in play by the Court's dictum endorsing "in principle" the power of federal courts to enunciate public policy is not worth the candle. Agreeing with the reasoning of the Court except insofar as this principle is concerned, I concur only in the judgment.
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