Supreme Court Associate Justice Antonin Scalia spoke on his new book, Reading Law, at a lunch at the California Club in downtown Los Angeles today, hosted by the Federalist Society. The majority of Justice Scalia’s remarks were responses to questions submitted via note cards by a crowd well over 250 in number, by my estimate – attorneys, mostly. Justice Scalia was charming, incisive, and funny as always. Here are some of the highlights.
On His Influences: Asked for his most important influences on his judicial philosophy, Scalia responded that he’d never given it much thought. Judging is about the meaning of words, and one doesn’t need a mentor to do a job that, at its core, is a basic human ability. Bearing that in mind, he concluded by saying: “I like Jackson. I hate Holmes.”
On Precedent: Asked for his take on overturning bad precedent, Scalia outlined his three basic criteria: How bad is the precedent? How settled is it? Does the precedent set a lawyerly standard? He presented two examples. When Scalia was a law student, the Incorporation Doctrine was still a controversial issue. While he still disagrees with it, it doesn’t do tremendous harm; it’s well settled such that lawyers and judges rarely give it a second thought; and it’s not hard for lawyers and judges to apply – you simply take the standard applied to the federal government and apply it to the states. When it comes to the cases dealing with “the big ‘A’” however, things change. Roe is widely agreed to be a badly written opinion, including by those who agree with its outcome. It is still hotly contested, vowed to be overturned, and thus not taken for a given. And it sets a standard – “undue burden” – that is fundamentally legislative and not judicial. The 200 years of precedent before Roe suggests that no burden was “undue,” so that’s no help. So judges are basically left to voting their conscience — the opposite of exercising “judicial” power.
On the Natural Law: My question was among those asked about the natural law. My specific question was: “Does textualism make any presumptions about human nature, such as the way they interpret language and the purpose of their laws, that render textualism a subset of natural law theory?” Unfortunately, the moderator asked Scalia simply to comment on the natural law and textualism. Scalia responded that he believes in the natural law, but he doesn’t apply it – he applies the positive law of the United States. He did confuse things a bit by saying that, were he a judge in Nazi Germany, he would not follow the positive law that resulting in the misappropriations from and ultimately extermination of the Jews. One wonders where the line is between here and there for the good Justice.
On the Confirmation Process: On whether the confirmation process is too partisan: Scalia thinks it is “disgusting,” but that the alternative would probably be worse. He points out that the process was not always this way, and that it was after judges began interpreting the Constitution as they believed it ought to be, rather than as it is, that they effectively became regarded by the people as quasi-legislators. And we vote on legislators in a partisan manner. It should be no surprise, then, that in this age of quasi-legislative judges, the confirmation process is as partisan as it is.
On Law Schools: Finally, Scalia criticized the legal academy for continuing to train “common law lawyers.” Common law lawyers, says Scalia, were “making up the law” in an age where positive laws were sparse. These were the “king’s men,” and they were often legislators, too, in fact. That is not the age we live in anymore, says Scalia. We live under democratic self-governance where the common law tradition is no longer appropriate. We need more lawyers who know how to follow the laws the people enact, not rogues who seek to enact the laws they see fit.
I was disappointed that time ran out before Scalia could be asked by question about Jonathan Turley’s proposal to increase the number of justices from 9 to 19.