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.”