The Greatest 75 Minutes of Law School

One of the great things about the law school that I attend is that it's less than a mile from the Supreme Court. A lot of the Justices visit the law school regularly--last year as I was waiting for a friend outside of the international law building the doors opened and out walked Kennedy, Souter and Ginsberg--and when you see the black sedans and SUVs parked in the spaces around the buildings it's often because one of them is on campus for one reason or another.

But it's a rare opportunity when a Justice visits a class to chat. A question and answer period where no question is off limits, and the Justice can opt to not respond, but the floor is shared between the students and him for over an hour. I had that opportunity this afternoon.

When I began law school, coming from my liberal Peace Corps and Vermont background, I did not like Scalia. It was an irrational dislike, as I had never actually read an opinion by him, but it was what he stood for--anti-homosexual, pro-life etc. My first semester as I was sitting in Constitutional Law 1 which focused on the federal system, I found myself highly confused for the better part of the first few months. In many cases I would finish reading an opinion (or a dissent, as the case may be) and be completely persuaded that the opinion was rational and correct. And then I would look at the author and BAM! Justice Scalia. Granted, there were plenty that I read of his and thought good god, I can never agree with that. By the end of the semester my confusion turned to a feeling of scholarly-ness, realizing that this was what law school forced people to do--think rationally about the LAW outside of the confines of our own moral and personal ideas in the context of the Constitution.

This semester it's Constitutional Law II--the version of Con Law where we DO get to the personal rights and liberties, the 1st and 14th Amendments mostly, the idea of "liberty" in the bill of rights and how that word has evolved (if you're of the mindset that it should evolve since the framers wrote the Constitution). We've talked about discrimination, free speech, pornography, due process, abortion and much more. We've traced the case law as it's changed through the years, or as it's been created. In this version of Con Law, Justice Scalia and I do not see eye to eye nearly as often as we did 2 years ago.

We've known about his visit since the beginning of the semester. My professor was a clerk for Justice Marshall in the '70s and has remained close to the Court, and her friendships with the current Justices has evolved as a result. While she and Justice Scalia also do not agree on most Con Law issues, they are good friends, and he graciously accepts her invitation to come and talk to her students each year, without being paid. Today was the day he came to our class.

My professor has spoken about the personalities of the Justices--how their demeanor in opinions and during oral arguments does not resemble their personalities off the bench. She says, for example, the Justice Thomas is one of the warmest, kindest men she's ever met and that his laughter fills rooms in social settings. Justice Thomas is the one Justice I have never ever agreed with or found any bit of rationale that I could relate to in opinions. 8 Justices are from earth, Thomas hails from Mars. I was excited to see how J. Scalia interacted with us, his demeanor, his reasoning.

He is not a tall man. And he has a large head. I had seen him wandering around the grounds over the past couple of years, but seeing him up close standing in front of us was a little different. His background is immense and impressive. He's worked in nearly every facet of law--moving from a firm to teaching to government (where he argued before the Court), back to teaching (both at my school and Chicago), on to different courts until finally being tapped in '82 by Reagan for the Supreme Court. He began with a short discussion, not of the living v. the dead Constitution as we had all assumed he would begin with, but by talking about the core importance, the backbone of the Constitution being the structure, not the bill of rights. The bill of rights, he said, is something that every country in the world has. It's the first thing leaders think up. He used the former USSR--their bill of rights was immense. It included detail that Americans would salivate over. But it did nothing. It's not what is important. And then he took questions.

Scalia has a personality. He's hysterical, quite frankly. In 75 minutes he broke into 3 different languages, banged his fists on his chest, told stories, had the entire room in stitches on more than one occasion. But he also candidly discussed his jurisprudence--his reasons for believing that the Constitution is not alive and growing, that it is dead and why he believes in an Originalist interpretation of the Constitution. He spoke about his acceptance of stare decisis in most cases, and his unwillingness to accept it in others. He was very difficult to disagree with because he is so rational.

He believes in orginalism because he does not understand how anyone can come up with any other criteria by which to decide cases and read the constitution. Allowing for a "living Constitution" allows for decision making that is not grounded in the words that the framers wrote, but in individual interpretation of words. He does not believe that Roe was decided correctly--the main reason is because he does not think that it is an issue to be taken up by 9 lawyers creating an umbrella law for the country in this area--he is uncomfortable with the notion that his three years of Harvard Law has somehow prepared him or any of the other 8 men and woman sitting on the Court to decide what an 'undue burden on the woman's right to choose' is every time a new dimension of abortion cases is presented. We have state legislatures for a reason. We have Congress for a reason. Those are the places where these battles need to be fought. Not in 30 minute oral arguments that will create or destroy state laws.

He was asked how his often harsh critiques of other Justice's opinion have affected his relationships with those people on and off the bench. He paused with this question. He said "first of all, I never personally attack anyone. I don't agree with some of the people on the Court. And they don't agree with me. Do I think their reasoning is often flawed, silly and wrong? Yes. Do I say that, sometimes in the form of calling it ridiculous or unbelievable (among other things)? Yes. But...my best friend of the Court is Ruth Ginsberg. Our families have been spending New Years eve together for the past 25 years. We do not agree with each other for the majority of opinions. I think that answers the question". He went on to say that writing a dissent is purely "for you guys--I mean hell, law students need something to talk about in class, right?". He also talked about why is such a vocal member of the Court in oral arguments--questions from the bench make a good lawyer great.

He talked about much more--why "substantive due process" is one of the most "completely irrational and totally insane" ideas he has ever heard (and made a great case for it, as well! As he said--close your eyes and THINK about the term substantive process. It makes no sense. It's would be the equivalent of saying procedural substance which is equally as stupid (his words, not mine)). He refused to answer questions on the D.C. gun laws (saying Ha HA! you cannot fool me, I know you're just trying to get me to have to force myself to recuse when this case is accepted!) or wire tapping for the same reasons. He talked about the 8th Amendment and the term "cruel and unusual". He spoke about whatever we wanted him to address and it was fantastic.

It was the best 75 minutes of my 3 years in law school. Of the 7 or so people who actually read this blog, I imagine the vast majority of you are not Scalia fans. But sitting in a room with a man who will most likely go down as one of the greatest legal minds, certainly of our time if not ever, was thrilling. I don't agree with him on a lot of issues, but I have an immense amount of respect and awe for him. An opportunity like the one I had this afternoon makes everything else in law school a little more...worth struggling through.