BY KELLY AGULE
Supreme Court of the United States Justice Antonin Scalia, a 1960 graduate of Harvard Law School, spoke to a packed Ames Courtroom on Nov. 30. HLS Dean Elena Kagan gave opening remarks, and moderated the discussion as Scalia fielded questions from both students and professors.
“There is nothing like being honored by your alma mater,” Scalia told the audience. “To be so warmly received by my old school was very affecting to me.”
Scalia graduated summa cum laude with a Bachelor’s degree from Georgetown in 1967, and was a Law Review Notes Editor at HLS. He worked for six years at the Cleveland firm of Jones Day and then became general counsel for the Office of Telecommunications Policy under President Richard Nixon and eventually the Assistant Attorney General for the Office of Legal Counsel in the Ford administration.
In 1982, President Ronald Reagan appointed Scalia to be a Judge of the United States Court of Appeals for the District of Columbia Circuit. Four years later, Reagan nominated him as an Associate Justice of the Supreme Court, and on Sept. 26, 1986, Scalia was approved by the Senate by a vote of 98-0.
Kagan praised Scalia’s contributions to legal scholarship and debate, although the conservative justice holds views that often diverge sharply from those espoused by Kagan herself.
“I think [Scalia] is the justice who has had the most important impact over the years on how we think and talk about law, whether we agree or disagree with his positions,” Kagan said in her introduction. “[He has] transformed the very terms of legal debate in this country.”
Scalia endorses a strict textual reading of the Constitution, defending both explicitly defined rights and those recognized by longstanding social or legal traditions.
Scalia has defended the death penalty against attacks under the Eight Amendment and has criticized the Miranda warning. But in analyzing the letter of the Constitution in the watershed case of Hamdi v. Rumsfeld, Scalia attacked as unconstitutional the government’s detention of a U.S. citizen as an enemy combatant without legislative suspension of the writ of habeas corpus.
In the realm of substantive rights, Scalia opposes a substantive right to abortion, consensual sodomy, or assisted suicide through application of the Due Process Clause of the Fourteenth Amendment. His votes on First Amendment issues range from stolid support of obscenity laws to opposition to laws restricting “any communicative activity,” including flag-burning, abortion protests, and cross-burning.
Asked by Kagan about his previous declarations of support for the “dead” Constitution, Scalia smiled. “I can package it better than that,” he said. “I call it the enduring Constitution.”
Scalia went on to compare the Constitution to other legal documents, and to statutes, both of which, he said, do not change in their meaning over time.
Professor Bruce Ackerman, who offered a Wendell Holmes Lecture Series this fall called “The Living Constitution,” asked Scalia why the justice does not see his task as interpreting the meaning of the words in the Constitution as they are understood today. Scalia again emphasized that ordinary statutes are not reinterpreted as time passes, but that Congress must respond with legislative action to changing times and meanings.
The most tense moment of the discussion arose when a student challenged Scalia about Massachusetts v. EPA, a landmark environmental case which had been argued before the Supreme Court on Nov. 29, the day before Scalia’s appearance at HLS. The lawsuit was brought by twelve states and several cities of the United States against the U.S. Environmental Protection Agency, alleging that the EPA was required to regulate carbon dioxide as a greenhouse gas pollutant.
“It’s your responsibility on behalf of my generation, on behalf of your 28 grandchildren [to address the problem of global warming],” the student, who identified himself as Nate from Section 2, told Scalia.
The student’s comments drew scattered applause, as well as scattered hissing from those who thought the statements were inappropriate. Scalia declined to comment on the pending case, and admonished the student for persisting with his questions.
“I assure you I will be courageous in my vote, and I will do the right thing,” Scalia said, adding, “You are arguing a case before me, and I really don’t think you should be doing that.” Dean Kagan reminded the audience that Scalia could not discuss cases pending before the Supreme Court.
The student’s remarks added to a long tradition of challenging the justice in colorful terms, most memorably in 2005 when NYU student Eric Berndt challenged Scalia’s position in Lawrence v. Texas and then asked, “Do you sodomize your wife?” In 2004, a student at a Harvard University appearance by the justice asked “whether you have any gay friends – and if not, if you’d like to be my friend.”
But the tension diffused rapidly as Kagan moved on to other questions, and the even closed with a query from Professor John Manning, who asked Scalia about analysis of open-ended phrases in the Constitution: “How do you know that [such] phrases aren’t meant to delegate to the courts the authority to take into account changing morality and sensibilities?”
Scalia, not one to mince words, responded tersely and with his characteristic sense of wry humor, calling Manning “an easy target.”
“How do I know? I know because it would be idiotic otherwise,” Scalia said. “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?”