The Forum

By Eric Gettemy

On Thursday, October 18, 2007, VUSL students were able to participate in an Question and Answer session with United States Supreme Court Justice Antonin Scalia. Justice Scalia is most noted in his jurisprudence for having a textualist philosophy when considering questions of statutory interpretation, and having an originalist philosophy when interpreting the Constitution. The questions were prepared beforehand and used at the discretion of the VUSL American Constitution Society and the Federalist Society, who jointly sponsored the event. In his remarks, Justice Scalia mentioned his personal opinion of Valpo Law, and why he chose VUSL out of many others he could have visited. He stated, “I haven’t visited all two-hundred law schools. There are only some I have a special affection for, Valpo is one of them.” Scalia’s answers to the questions were by and large thoughtful and candid. What follows here is a list of some the questions posed and a brief summary of the answers given by Justice Scalia. Let me stress the fact that the session was not electronically recorded, and these answers are from shorthand notes, and thus do not represent a word-for-word transcript. The purpose of this article is to give the general gist of what was said.

1. In a recent article, the New York Times characterized the ideological divide on the Court as “bitterly divided as it has ever been.” The Times said this divide makes the Court more like a “political body than a legal one.” Whether real or perceived, the idea that the Court is politically or ideologically divided is disturbing. How would you address this law student’s concern regarding the influence of ideology and the administration of justice?

2. Is the Court concerned about the high number of 5-4 decisions and the perceived lack of collegiality on the bench?

A: 1 and 2. “You should not believe what you read in the New York Times.” This was followed by laughter, and Scalia quickly narrowed his initial jest by specifying that when the Times writes about the Court, they are nearly always misinformed or plainly wrong. He stated this is mostly due to the fact that no one has access into the Justices’ discussions of the case, not even secretaries or law clerks. In addition to this, it is the long tradition of the Court not to respond to these types of articles because the Court is not a political institution. He stated, “The press does a terrible job of covering the Court because all they care about is a story, it doesn’t matter if it’s true or not. Further, they shy away from philosophical argument, which is really what the Court is about, and look for personal or political strife within the Court.” Scalia added that the latter doesn’t even exist, and that his best friend on the Court is Ruth Bader Ginsburg, who is obviously politically distinguishable from himself. As a side note, he said their families often vacation together to establish the fact the personal differences to not contribute to the internal structure or decision making process of the Court. In addition to this, the personal differences in the Court do not contribute to the personal relationships outside of the Court. There is no lack of collegiality on the bench.

3. In light of evidence that public schools today are more segregated than they’ve ever been in the past 30 years, should the Court be using strict scrutiny in assessing the constitutional validity of efforts to correct this pattern of segregation?

A: “This is a silly question.” [Scalia intimated that he would find a law that provided for the compulsory mixing of race unconstitutional. This would be due to the fact that segregation, as it was understood in the 1940s and 1950s, no longer exists today. If there are areas that happen to be disparate in race, it is far different than a state-sponsored “separate but equal” policy.]

4. In light of the public concerns being voiced about the executive branch’s claims to vast power such as warrant-less wiretaps, torture, dispensation of federal habeas review, and foreclosure of a federal forum for detainees, should the role of the Court be to reign in executive power?

A: The Court does not exist to shape up the executive branch or to shape up the Congress. Public grievances are taken care of through the democratic political process.

5. Regarding abortion, physician assisted suicide, gay marriage and other controversial issues, why is there such a legal issue with what people do with their own bodies? Shouldn’t the ultimate power be given to the individual whose bodies are affected by these policies and laws?

A: Society has always regulated morality. Current examples of this can be found in the prohibition against bigamy or smoking. Why would these be the business of society any more than abortion would be? If there is abortion, why not have incest? First of all, the notion that abortion is solely dealing with “your own body” is highly disputable. Secondly, the question is silly to begin with.

6. Thurgood Marshall has said, “I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation, and its respect for the individual freedoms and human rights, we hold as fundamental today. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making…” What is your response to Justice Marshall’s remarks on the Constitution?

A: I believe that the questions should be put to the people through the democratic process. The Court should not be in the business of making public policy. Generally, people who want to accomplish their ends by changing the Constitution are the ones who can’t get it done through the political process. Whatever frailty existed in the original document, it is not up to five out of nine people to decide [The required majority on the Supreme Court].

7. What deference should be given to the doctrine of stare decisis?

A: Not too much in statutory matters because Congress can fix statutes. As for stare decisis and the Court, I follow a three part analysis:

1. How wrong is it? How wrong was the result of the case?
2. How accepted is the decision today among the legal community, and the other justices?
3. Can I work with it? Is there a clear and functional rule that can come from the case and its reasoning? For example, Roe v. Wade was a horribly unworkable case, and possibly one the worst reasoned cases on the history of the Court, no matter which side of the abortion debate you fall on. Even in Casey, the standard is essentially what is considered an “undue burden.” This standard is policy, not law. I can’t work with it.

8. What are your views on the contentious nomination process for Supreme Court nominees?

A: This is what lies at the end of the road of an “evolving Constitution.” The most important thing the people [Congress] want[s] is to put people on the Court who want to rewrite the Constitution to fit their agenda. The people [Congress] have figured out the game.

9. Will Justice Scalia hire a Valpo student as a law clerk? [Followed by loud applause]

A: I believe in a meritocracy. I would even prefer to hire a Valpo student if I could be sure I could count on him and his ability. The position is critical to the functioning of the Court and subsequently the Country and it would not be a good thing if I had a clerk who couldn’t handle the job once he’s already been selected.

This entry was posted on Saturday, November 10th, 2007 at 3:12 pm and is filed under News.You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.