Jay Reding.com

Justice Scalia In Minneapolis

This afternoon I had the privilege of attending the formal investiture ceremony of the 33rd District Court Judge for the District of Minnesota, Patrick J. Schiltz. In attendance at this event was none other than Justice Antonin Scalia of the United States Supreme Court. Justice Scalia was kind enough to take questions from students prior to the event, which was quite an amazing experience. Even those who disagree with Justice Scalia must respect that he is one of the finest legal minds in American jurisprudence today, and that was apparent from his answers. What many don’t know about Justice Scalia is that he’s one of the most engaging and witty speakers I’ve ever heard. Despite having an impressive understanding of the issues, he came across as someone with a set of deeply-held convictions about the law, and he felt no need to gussy up his jurisprudence in any way. With Justice Scalia, what you see is what you get. He believes in the originalist theory of constitutional interpretation, and that’s how he’ll decide.

Scalia gets a rap for being an ideologue, and while that’s true, he’s not ideological in the conventional sense. He isn’t a conservative ideologue in the sense of modern American political conservatism. If anyone has any doubts of that, read his opinions on the flag-burning ban legislation and also his brilliant dissenting opinion in Hamdi v. Rumsfeld (an opinion that argued for extensive restrictions on Executive power to detain US citizens which was joined by Court “liberal” John Paul Stevens). He is ideological about his belief in originalism, but that jurisprudence does not make him either some organ of the Bush Administration or a conservative judicial activists. Justice Scalia even said that his belief in originalism even prevented him from doing “all those crazy conservative things” that he might otherwise like to do.

It’s a rare event to be able to get close to a sitting member of the highest court in the country, especially when one is a mere 1L. Not only did I get to see Justice Scalia, but also watch as the state of Minnesota gains an experienced and wise new member of the federal bench. Congratulations to newly-invested Judge Schiltz, and thanks to Justice Scalia for honoring us with his presence.

UPDATE: Powerline has a note about the event as well.

6 responses to “Justice Scalia In Minneapolis”

  1. Murali says:

    I had the honor of having some drinks and smoking some cigars with Scalia back in 1997 or ’98 at a small bar in South Carolina. He’s a great person and a good drinker!

  2. Seth says:

    All argument about the silliness of a judicial philosophy that infuses a modern ideology into bits and pieces of what the framers said and passes itself off as what the founders originally intended…

    Is Scalia the only Justice who will cite himself? That is, Scalia will write a dissenting opinion and then later quote himself in that dissenting opinion–when writing for thr court. In doing so, he makes his writing in dissenting opinions (read: not the opnion of the court) and inserts it into the law (read: makes his opinions the opinion of the court). I’m wondering if any other Justice in the history of the Court has done this.

    I think my favorite Scalia opnion is RAV v. City of St. Paul, where he obsesses about the “shockingly hard core pornographic movie that contains a model sporting a political tattoo” over and over.

  3. Jay Reding says:

    All argument about the silliness of a judicial philosophy that infuses a modern ideology into bits and pieces of what the framers said and passes itself off as what the founders originally intended…

    There’s actually a difference between originalism and original intent theory (even though they have many similarities). Scalia is less concerned about what the intent of the Framers were than what they actually said. Original intent theory is more interpretive, while originalism tends to be more strict in its following of the Constitution. Scalia actually gave original intent theory a slap in his speech.

    I’m wondering if any other Justice in the history of the Court has done this.

    It’s quite common – after all, the only precedent that is binding on the Supreme Court level are cases that the Supreme Court has itself decided. I know Judge Easterbrook of the Seventh Circuit does the same thing frequently as well. (Such as the Hill v. Gateway case which almost entirely relies on Easterbrook’s previous decision in the ProCD case.)

  4. Seth says:

    1.) Originalism is worse, ignoring both the fact that the meaning of words does not exist in a vacuum, and also ignoring the fact that there were many different Founding Fathers saying many different things on many different subjects, contradicting each other and sometimes themselves. To pick what the founders said is highly subjective and one can reach many diffferent conclusions depending on what one determines is more important or which Founder accurately expressed the will of the Founders. Oh, that and there is no record of what was said at the Constitutional convention.

    2.) If the Supreme Court decides something in one case, and a person dissents, then that position is not the opinion of the Supreme Court. In fact, that opinion is the opposite of teh opnion of the Supreme Court. Therefore, to quote a dissenting opinion and insert it into another opinion is wrong. This is quite a far cry from Harlan (the Harlan of the 1950s), who would write a dissenting opinion, and then in subsequent opinions write against what he had written in that dissent, out of respect for the Court. I’ll ask a better question: Are there any other justices in the history of the Supreme Court who have done this?

  5. Jay Reding says:

    1) You’re still confusing originalism and original intent. Scalia’s jurisprudence isn’t concerned with what the Fathers may or may not have said outside the Constitution, but in strictly constructing what they did write in the Constitution itself. Justice Thomas is more of a believer in original intent, Scalia’s more of a strict constructionist.

    2) That depends – for instance, Brown v. Board of Education cites Justice Harlan’s dissent in Plessy v. Ferguson. The Supreme Court is not bound by any other court, nor are they bound by even their own prior decisions. A Justice can cite a dissenting opinion whenever they choose, especially if they’re trying to show how legal doctrines have changed over time. I can’t think of a single Justice at any point in history who hasn’t used a dissenting opinion as authority in some way.

    At a lower court level, Supreme Court dissents are merely persuasive, and not binding, but the Supreme Court has no obligation to remain constant on every issue — nor would it be good for anyone were that the case.

  6. Seth says:

    Scalia is definitely not a strict constructionist. And again, the problem with looking at the words in the Constitution and only the words is that words do not exist in a vacuum.

    The problem with #2, of course, is that in Brown, the Court was overturning Plessy and saying that Harlan was correct. So it makes sense to cite the dissent. Of course, the court was unanimous in Brown. No such dice with Scalia.

    Are you arguing that the Supreme Court should not be bound by its own precedents?