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February 19, 2016

Law School Panel Considers Supreme Court After Scalia

A panel discussed the legacy of late Supreme Court Justice Antonin Scalia and the future of the court at the Law School on Thursday.

“There was never any doubt in Scalia’s mind about whether he was right about anything,” said Law School Professor Geoffrey Stone, who was friends with Justice Scalia. “I once asked him at dinner a couple years ago, what the hardest decision was he had to make as a Supreme Court Justice. He said, ‘Jeff, there are no hard cases. I just follow the law.’”

The panel members were Stone, William Baude, and Gerald Rosenberg, all professors at the Law School, and University of Kansas School of Law Professor Stephen Ware. The event was moderated by Law School third-year Krista Perry, who serves as the President of the University’s Federalist Society.

Perry first asked the panelists how they would personally remember Justice Scalia.

Rosenberg, who once taught a class with Scalia, said he was a “blast.” “I walked away with a lot of respect from that,” he said. “He is the only justice whose opinions can make me burst out laughing.”

“And then, often cry,” he added.

Stone knew Justice Scalia well; he was part of the faculty that voted for his appointment at the Law School. “We disagreed about everything, but we almost always had a civil, spirited debate,” he said.

Perry asked how the panelists thought history would remember Justice Scalia in the next fifty to one hundred years.

Much of that discussion focused on Scalia’s passion for originalism, a way of interpreting the Constitution with the understanding that its meaning was fixed at the time of its writing.

The panelists agreed that it would be difficult to say how he would be remembered by constitutional scholars, especially because he wrote few important majority opinions. However, he did write his opinions, many of them dissents, in ways that captured public attention.

After the panel was opened to questions from the audience, one law student asked how an appointment to the court could be made when neither party has trust in the other.

“One of the problems I think we’re all having is we’re thinking very short term,” Rosenberg said in response. “There will be a new president. Justice Ginsberg ain’t gonna live forever. Justices Kennedy and Thomas are older. The next president is likely to have two or three appointments. One of the things is getting elected officials to take a longer-term view.”

Another asked if they thought the public would remember Justice Scalia for his “garrulous” writing style.

Stone said that Scalia had told him that this was a strategy he employed deliberately. Scalia had realized that if he wanted his opinions to be remembered, he needed to write in a flashier style. “He said to me…now when I write opinions, and now when I write speeches, I am very aware of the fact that I want it to get public attention, so that casebook authors will take my dissent and put it in the casebook, because it’s really cool,” Stone said. “Because it’s funny and sexy and annoying.”

Baude supported this, saying that Scalia’s opinions are more often published in casebooks than those of other justices.

In the end, panelists questioned whether or not Scalia’s time on the court would have a lasting impact.

“If you have an approach to constitutional interpretation that you believe to be right and principled, and if you want it to carry the day, you have to follow it in a principled way, and I don’t believe that’s what Justice Scalia did. There are too many decisions that he made that one may agree with or disagree with, but quite honestly cannot be reconciled with originalism,” Stone said.

Rosenberg agreed, and went a step further. “If you want to make a difference, you have to be more politically sensitive than Justice Scalia was,” he said.

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