In an engaging display of intellectual wit, conservative Supreme Court Associate Justice Antonin Scalia used his widely known and oft-feared rhetoric skills to offer insight into the legal system and the Constitution to an audience composed primarily of alumni and parents on Saturday, Oct. 22 in a sold-out Palestra.
The panel discussion, which centered on the role of the Constitution both historically and in modern society, pitted Scalia against alumnus Robert Sack ’60, a Judge of the U.S. Court of Appeals for the Second Circuit, and Margaret Marshall, former Chief Justice of the Supreme Judicial Court of Massachusetts.
While the panelists’ views were divergent on most issues, it quickly became apparent that Marshall and Sack deferred some level of authority on many questions to Scalia, who throughout the panel interjected scintillating one-line phrases that both clearly showed his disagreement and sent the audience into laughter and applause.
The panel began with a brief overview of the functions of the different courts on which the three panelists serve.
Sack described his court, which is one of 13 U.S. Courts of Appeals, as an “intermediate” one that is the first level of appeal — it hears every case that is appealed to it and is geographically limited to three states (New York, Connecticut, and Vermont). Anyone can attempt to appeal his court’s decision to the Supreme Court.
Marshall, a native of South Africa, retired from her position in December 2010. Her court is a discretionary court, meaning that justices select the cases they hear. The court has jurisdiction only to the state of Massachusetts.
Scalia described his court as “the last word in federal law” but said that in contrast to what many people think, his court is not the most important in our daily lives.
“All of the basic laws that you live under are state laws. Some criminal laws are federal but most are state,” he said.
Then, inciting a roaring response from the crowd, Scalia added, “So you can murder anyone in the country, and if you do it right, you don’t come to my court.”
Scalia’s court also has jurisdiction discretionary, meaning “almost no one has a right to come to our court,” he said. His court, however, invariably takes a case if there is a disagreement between two of the federal courts.
After discussing some of the high and low points of his job, Scalia casually said, “It’s a pretty easy job,” to audience applause.
Following this, moderator of the panel, alumnus and legal scholar Arthur Miller ‘56 brought up same-sex marriage to sustained applause.
Addressing Marshall, he humorously said, “I’m currying favor for you,” and then directly asked her if Massachusetts did what they did to “avoid him,” pointing at Scalia.
Marshall joked that she would take the Fifth Amendment to avoid the question, but then said that the answer is no — the parties involved in same-sex marriage only raised Massachusetts constitution claims, not federal claims. Marshall said that she is in favor of the separation of these constitutions.
“I think there is a wonderful interplay between the federal government, the state government, the federal courts and the state courts,” she said.
Scalia resoundingly disagreed with this point, though he later made the important distinction that he believes a separation of powers in government is vital.
“Individual rights given by a constitution are supposed to be fundamental,” he said. “I don’t think there is a difference between fundamental rights from one state to another.”
Miller then asked in what ways the Constitution is meaningful to citizens on a daily basis.
Sack immediately jumped in, saying that the “Constitution is so meaningful” and that everyone should “take 35 minutes and read it.” He then quipped that he was unsure why they had invited him to the panel, as his court does little Constitutional interpretation, and “depends on Scalia” for that.
At that moment, his microphone cut out entirely, and he plunged on, seemingly unaware for several long moments until he realized it, adjusted his microphone and said “I just lost my First Amendment right,” to more applause.
Marshall agreed with Sack, saying that the Constitution “matters tremendously.” She expressed her belief in the importance of the Bill of Rights, which incited an immediate reaction from Scalia, who called the Bill of Rights a “parchment guarantee.”
“What has preserved our liberties is not the Bill of Rights,” he declared. “What makes us different is the real Constitution — its structure — that’s what they debated for a whole summer in Philadelphia and that’s what makes us different from most other countries in the world.”
Miller put an end to the Bill of Rights debate by asking if the language of the Constitution is outdated, perhaps rendering the document “long in the tooth.”
“There are those who say that [the Constitution] is so old, society has changed so much, it’s up to the Supreme Court to express views of society,” Scalia responded. “I don’t think that. I don’t pretend to say what the Constitution means.”
He then gave examples — some people think the cruel and unusual penalty clause in the Eighth Amendment prevents the death penalty while others do not. Similarly, some think there is a Constitutional right to abortion; Scalia said there is “nothing even approaching it in the Constitution.”
We have to figure out how the general language of the Constitution applies, first by analyzing the old phenomena, he said.
Sack then asked Scalia how he deals with the 1954 court case Brown v. the Board of Education.
“I am a textualist,” Scalia responded. “The reading of the Constitution to me depends first of all on the text.”
Scalia said Plessy v. Ferguson, the 1896 case which upheld the separate but equal doctrine, was absolutely decided wrongly. Scalia said the landmark decision in The New York Times Co. v. Sullivan case of 1964, which supported freedom of the press, “takes his breath away.” He said the case should have been decided democratically, through legislatures, and not though the Supreme Court.
“I am an originalist, I am a textualist, I am not a nut,” he then asserted to laughter.
Miller concluded by asking the panelists what future Constitutional questions they imagine arising in the next 20 to 30 years.
“I have no idea,” Sack said seriously, then humorously added, “I’m trying to apply the law to what happened three years ago and get it done in a year.”
Marshall agreed with Sack on the difficulty of predicting but said that advances in technology, like artificial insemination, could become a Constitutional issue. Scalia agreed but disagreed that new phenomena are Constitutional questions.
“It’s legislatures that deal with change, with new phenomena,” he said. “You should want that to be the case — democracy is about people deciding for themselves.”
During the Q-and-A period with the audience, Scalia responded to questions on the involvement of the judiciary in security issues, the role of the Constitution in the immigration and health care debate, the Constitutional right of privacy and the role of corporations.
The question on corporations engendered the loudest audience response, perhaps because Scalia’s comeback was so rapid and salient. The audience member who raised the topic said our political rights come from a creator. He asked, if corporations are not created by God, but by the people, then can specific legislatures restrict their rights?
“When you have a law that prohibits corporations from taking a position on elections, I guess that means The New York Times cannot editorialize — or are you going to make an exception?” Scalia responded, to loud applause.
Scalia went on the say that “corporations are simply collections of individuals” who want to be able to speak when they feel their economic interests are threatened.
“The Constitution gives the freedom of speech and that means speech by individuals in whatever assembly they want, in whatever collection they want,” he said. “To try to separate out corporations — it seems to me quite impossible and if you want to do it, see what happens to The New York Times.”
Audience members overall responded positively to the panel, regardless of whether or not they agreed with Scalia’s views.
“I thought it was marvelous — a first class event,” Ray Ettington ’51 said. “That’s the kind of insight you’d never get any other way.”
Political science professor Gretchen Helmke said she thought the panel was well organized and that the panelists clearly conveyed the differences in their judicial philosophies, highlighting why these differences are important to the average citizen.
“I enjoyed it more than Clinton,” audience member Michael Klein said. “You can agree or disagree, but [Scalia] is a fascinating intellectual and legal mind and a very engaging person.”
Buletti is a member of the class of 2013.