My talk with Justice Scalia

Well, not exactly a talk, but he did listen and respond to my question. The highlight of the year's speakers was today's visit by Justice Antonin Scalia at the University of Toledo. Justice Scalia was approachable, honest and even entertaining. He worked without notes and never skipped a beat reciting decisions and important historical events throughout the history of our country.

On a side note, there was almost no security presence at either of two venues. There may have been a Federal Marshall, and the University Police came through before the event, but no metal detectors or searches. I was shocked.

During his morning Q&A with the College of Law, I was privileged to have the opportunity to pose a question to one of the world's great legal minds. My humble question related to the conflict among justices on the court and whether this is an important feature of the supreme court or if Chief Justice Roberts is correct to seek more unanimity? Justice Scalia without pause started into a dissertation on the ridiculous thought that courts should be unanimous. He began with a bit of history that under Justice John Marshall the Supreme Court first shifted to a majority opinion from its previous policy of five separate opinions. Justice Scalia opined that this is a dishonest approach on the part of the judges who do not fully agree with the majority opinion.

Justice Scalia took particular pride in his own reputation as the great dissenter because he considers his dissents as honest and provides accountability. He believes he has been consistent through his decisions and the dissent is a public tool for predicting future responses and influencing future judicial and legal minds.

The morning audience, all law students and professors, posed a number of great questions covering the gamut of constitutional questions. Some notable quotes:

Yes, there is a right of privacy... [A European court considered a case,] in what can only be described as a five many homosexual orgy... Somehwere between five men and a full Coliseum the right of privacy ends.

I believe in stare decisis and I accept the mistakes of the court as water over the damn.

I live in this Marble Palace. Hell, I don't know what the evolving standards of decency are. I am afraid to inquire

I am an originalist, but I am not a nut.

I don't think the Supreme Court would affirm... Kelo. The public has turned against the decision.

On his former colleague Justice Sandra Day O'Connor:

If you are ever on the wrong side of a civil procedure question, she will grab you like a dog with a bone and shake you. She lives and dies by [civil procedure].

Regarding oral argument:

It is very rare that oral argument changes my mind, but a persuasive advocate can change my mind.

His considerations for overturning precedent:

1. How wrong was the decision?
2. How wide has the decision been accepted?
3. How does the decision permit me to be a lawyer? [to advise and predict the outcome of a dispute based on the precedent]

Justice Scalia delivered many persuasive arguments for his position as an originalist. The alternative, to consider the Constitution as a "living organism," does not provide any guidance for the role of the courts. If the Constitution, the foundation of our country, is interpreted in light of current "standards of decency" and political climate, it loses its power and all of that power is transferred to the Court. Justice Scalia proposes keeping that power with the people, who voted for and ratified the Constitution. Originalists are not necessarily ultra-conservative, a textual reading of the Constitution does not mean it cannot be changed, merely that changes should come in the form originally proposed: amendments. The Constitution clearly intends changes to come from Congress, not the Court.

I enjoyed the festivities immensely and I look forward to following Justice Scalia and his colleagues more closely.