Supreme Court Justice Antonin Scalia (CAS ’57) argued that judges should refrain from making moral decisions during a guest lecture at the Georgetown University Law Center on Monday.
In the Hart Auditorium in GULC’s McDonough Hall, 360 first-year law students attended and participated in a following question-and-answer session.
“It’s not up to me to decide what is justice and what is law,” Scalia said. “I can’t tell you how often I reach results that I don’t like. You show me a judge that likes the result he reaches all the time and I’ll show you a bad judge by my estimation, because I’m not supposed to make the laws; I’m supposed to apply the laws that the people have adopted directly or through their representatives.”
Law Center Dean William Treanor recalled that last year when Justice John Paul Stevens spoke at the law center, he identified Scalia as the Supreme Court’s funniest judge, but Treanor noted he is also highly regarded for his scholarship on constitutional law.
“Justice Scalia has profoundly shaped our nation’s jurisprudence as a member of the [Supreme] Court of course, but as a brilliant scholar, an executive branch official and also a member of the Court of Appeals,” Treanor said. “He’s a giant in the history of the law, and it’s a privilege for all of us to hear him.”
Professor Randy Barnett introduced Scalia and moderated the question-and-answer session. In his introduction, Barnett said that Scalia is the most famous sitting Supreme Court justice.
“Justice Scalia is the most discussed justice on the Supreme Court,” Barnett said. “And that’s true not just in your law class but in law classes across the country, and the reason for that is simple. The opinions he writes are clear, principled and above all, they are interesting.”
Scalia began his lecture noting that he and former Chief Justice Edward Douglass White are the only Georgetown graduates to ever sit on the Supreme Court before he addressed his feelings on modern law education.
“It has always been in the despair of us originalists that you suckle at the common law,” Scalia said. “Most of your first year is devoted to learning the common law of contracts and property, of torts. When you open your eyes to law, your image of the law is the common-law judge who figures out the right answer to a problem.”
Scalia explained that he opposes that image because of its political implications.
“It is true that the great judge was the judge that could figure out things,” Scalia said. “But what has intervened between then and now is something called popular democracy, and what that requires; you cannot have a democracy of any extent without a language, a language that’s agreed upon so that the people who write the laws are using the same signals as the people who apply the laws. The job of the modern judge is not to invent the law anymore, not if you believe in democracy anyway.”
Scalia also commented on his commencement speech at William and Mary University, where he joked about extending law school to last four years.
“There is so much more law to be learned today than there was when I graduated from law school, whole areas of law that didn’t exist,” Scalia said. “If you want to be a lawyer, you have to be learned in the law.”
In the second half of the question-and-answer session, Scalia addressed questions about his participation within the Supreme Court, revealing that his law clerks actually have more influence on him than his fellow justices because they often come to conference with their minds made up.
“I thrash out the cases with my law clerks much more than with my colleagues. They’re smart as can be; they’re not jaded as I am. It’s a very good process,” Scalia said. “They write the first drafts of my opinion, but I tell them how it comes out. And I don’t think they have undue influence on me. They’re the principal sounding board that I have. They often disagree with me; I disagree with them, which is more important.”
Scalia also discussed his infamous proclivity to dissent.
“I don’t mind the majority opinions,” Scalia said. “I write the dissents for you guys. Seriously, what’s the use of a dissent in the Supreme Court? You know on the Court of Appeals it has some practical use, you warn off other circuits. … In the Supreme Court, what’s the use? You’ve had your chance. You’ve lost. Why don’t you go quietly? ‘I dissent.’ When I write my dissents, I try to make them not only clear, but interesting.”
Scalia said he geared his dissents toward study in law classes because of his hope for the next generation of lawyers.
“I’ve given up on the current generation — they’re gone, forget about them. But the kids in law school, I think there’s still a chance,” Scalia said. “That’s who I write my dissents for.”
David Teager says
From “The Hoya’s official comments policy:” “The Hoya deems a comment to be inappropriate if it…degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability or other classification.” And yet this man degraded the entire homosexual population in his discussion, saying they deserved protection under the law in the same way that pederasts do (that is, no protection not granted by majority rule).
I really can’t believe the fawning reception this man was given. “Most discussed justice,” perhaps, but only because he is the most disgusting, who does not understand justice.
TIMOTHY MILLER says
Right, I always enjoy recalling my one and only time meeting Justice Scalia and although our views are often closely aligned. His views and rulings are at times nothing more than Locknerizing from the bench. We I meet him it was informal with a small group of us and I knew nothing of the law but was honored none the less.. A young intelligent women shook the Justice to his core when she challenged texturalist/Originalist modes of interpretation by first asking then demanding ” Dear Justice Scalia we have listened now for 15 minutes on how to interpret the Constitution, but there is no such power of Judicial review in the text of the Constitution, as a texteralist where do you conjure up such authority? The greatest power the Courts have and yet its nowhere within the text, so if not from there could it be the great and honorable Cheif Justice John Marshall pulled it from his arse? With all do respect. Justice Scalia could not answer this question consistent with his rulings and has expanded government power from language that does not exist and from intent that at best was talked about in the federalist papers but was specifically and expressly confined to discussion only in #78.
Gilbert Williams says
As a resident of Wisconsin and interested citizen of the US. I see an event as this a platform for an annual review of a sitting Justice. The Q&A session should be a telling process for the continuing ability of the nations Supreme Court Justices.
From the article, it sounds like Georgetown is training lawyers who do not ask well thought questions and do not challenge the legal authority to fully explain their positions.
I live in a state where our assurance of a fair process of government is being taken. Gov. Walker in Wisconsin signed new legislation eliminating the Government Accountability Board on the same day the Scalia spoke and there was no connection, reference or challenge to this from your student body.
May I ask some rhetorical questions and be answered in a thoughtful manner, as that is what your training should cover.
1. If a State government passes legislation that allows legislators to accept dark money from out of state, is it an offense to rights of the Citizens of that state?
2. Do the people (not corporations) have a Constitutional right to free and fair elections? Is this right supported by the 10th amendment? And who determines what is a free and fair election?
3. How would the above questions be addressed by an originalist interpretation of the Constitution?
4. Why did the student body pass on asking difficult question of the supreme court justice? Is there a predetermined or protocol?
I expect some professional answers, if I have stepped outside a boundary, please let me know.