At HLS, Scalia offers vigorous defense of originalism: School celebrates his 20 years on the high court in two-day event
Post Date: February 2007
Supreme Court Justice
Antonin Scalia '60
With a reputation as the wittiest and perhaps the feistiest member of the United States Supreme Court, Associate Justice Antonin Scalia '60 did not disappoint the hundreds of HLS students who turned out to hear him at an Austin Hall appearance in November.
The session, billed as 'A Conversation With Justice Scalia,' capped a two-day celebration of Scalia's 20th anniversary on the Supreme Court and offered a rare opportunity to trade questions and answers with a sitting justice.
Introducing a visibly appreciative Scalia, Dean Elena Kagan '86 said: "His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country. He is the justice who has had the most important impact over the years on how we think and talk about law."
Kagan set the stage for the rest of the question-and-answer event when she asked Scalia to compare his approach to constitutional interpretation with that of this year's Oliver Wendell Holmes lecturer, Yale Law Professor Bruce Ackerman, a proponent of the view that the Constitution was never intended by the framers to be static or incapable of evolving through interpretation.
Scalia, clearly relishing the parry and thrust of debate, offered a sharply honed defense of originalism. "The choice that you're confronted with is simply whether this is a legal document, like all other legal documents. We don't think that a statute changes its meaning," he said. "But if you think that all these provisions -- due process of law, equal protection of the law, cruel and unusual punishment -- are just empty bottles which each successive generation of Americans should fill up with whatever content they think is desirable, then why in the world should the content of those bottles be determined by nine lawyers?"
The correct approach, he said repeatedly, is legislation or even amending the Constitution to address major societal issues for which the original document yields no obvious answers. "If you want an evolving Constitution, you should be honest about it and say that whatever Congress says is what reflects the current, most deeply held beliefs of the American people," he said.
One student challenged Scalia to recognize the problem of global warming "on behalf of my generation, on behalf of your 28 grandchildren." (The issue of whether the Environmental Protection Agency is required to regulate carbon monoxide as a greenhouse gas pollutant was argued in the Court the day before Scalia's visit to HLS.)
"Twenty-nine [grandchildren]," Scalia shot back. "I assure you I will be courageous in my vote, and I will do the right thing," but he warned that he could not comment on a pending case.
Asked by Professor John Manning '85 (a former Scalia law clerk), whether open-ended phrases in the Constitution were perhaps intended "to delegate to the courts the authority to take into account changing morality and sensibilities," Scalia replied: "Do you seriously think the Constitution would have been ratified if it had a clause that said the document would be interpreted by nine different lawyers?"
Scalia's two-day visit included a dinner in Langdell Hall, where Kagan presented Scalia with a framed letter by Supreme Court Justice Joseph Story. Professors Charles Fried, Laurence Tribe '66 and John Manning offered remarks.
By Robb London '86