My dad was ecstatic when I told him that Supreme Court Justice Scalia was going to be speaking at Moritz. It came as no surprise; they are comparable people on many levels. Both are judges, albeit at different levels. Both are firmly rooted with conservative religious ideals. Both can barely count their number of kids using their fingers (9 for Scalia; 8 for my dad). As such, both are amassing what appears to be a small army of grandkids (30 for Scalia; only 15 for my dad, but trust me, there is a long way to go). And both have an ability to be disarmingly humorous. I do not know how much my dad agrees with Scalia’s views of strict Constitutional originalism; I doubt much, but they certainly agree on many of the conservative views that result. Surrounding myself with a slightly more liberal crowd these days, my excitement was tempered slightly; regardless, how often do you get the chance to hear a Supreme Court Justice?
I was one of the fortunate 1Ls that was randomly invited to the first event of the day, a small question and answer session targeted towards the 2Ls and 3Ls in the advanced advocacy and Supreme Court litigation courses. It was during this session that Scalia’s disarming humor was most evident. The relationship Scalia has with Judge Jeff Sutton, the professor of these two advanced classes and once a clerk for Scalia, provided for a hilarious back-and-forth in some instances. Based on this small session, it was easy to see what my dad liked about Scalia. He is articulate, well-read, humorous, and personable. But with his remarks during and after his keynote address to close the day-long symposium, it is also easy to see why so many liberal groups, or groups supporting human rights that extend beyond white males, are not quite as impressed.
His prepared speech was a bit drab and filled with the expected. He mentioned that originalism doesn’t always have to reach the best answer; it just has to reach it more often than other approaches would. (He of course thinks it does). He made his obligatory conservative mentions of homosexual sodomy, abortion, etc. Once again, the highlights of the occasion came during the question and answer sessions; however, in this context, it was less for the comedy value and more for the tension. A female, Asian-American 3L asked, with fair intentions, how to reconcile the pretenses of originalism and progressions in equality for women, different races, etc. His response was astonishing, made a remarkable leap in logic, and unfairly put words into her mouth. By even having that question, he noted that she must disagree with the entire Constitution. Seriously. She had her hand up to respond, but, either in the interest of preventing a one-to-one debate or simply that she was not seen, she did not have a chance. I’m hoping she would have said something like this, “You know, Your Honor, if the Framers of the Constitution were here today, they’d be on my side for these fair rights, not your archaic, frozen-in-time perspective.”
I cannot say that I am well-read in the merits for or against strict Constitutional originalistic views. I respect the document, and I revere the reasoning that the great minds of that time possessed. But, I believe it is a disservice to our society to be bound tightly, as Scalia would recommend, to a document that in no way could foresee the progression of society. The value of the document, and of the people of that time, is in their reasoning and not their conclusions. The perspectives at the time towards women, other races, or homosexuals, are not ones that should be binding today. We are a more accepting and tolerant society. It should not require an amendment each time we feel the Constitution, as it was written, reflects our new perspectives. Lastly, I think it is a discredit to all the Framers to suggest that they would not draft anything differently today.
If I were to be able to ask Justice Scalia one question, off-the-record, I would want to ask him how he will approach the inevitable situation when one of his 30 grandchildren is gay. Will he cling to his Constitution and condemn the child’s actions? Or will he lose a bit of sleep wondering if compassion would be a better source than the perspectives of a people 200 years ago when a document was written? Knowing the usual response by religious conservatives, unfortunately, it will probably be the former.