High court justice explains judicial approach
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Associate U.S. Supreme Court Justice Antonin Scalia gave a lecture to law students at the Thomas & Mack Moot Court on Wednesday, discussing originalism in relation to the United States Constitution.
Nevada System of Higher Education Regent Rick Trachok, who serves as chair of the Nevada Board of Bar Examiners, introduced Scalia to a crowd of first-, second- and third-year students attending the William S. Boyd School of Law.
Trachok praised Scalia for having one of the brightest minds and his capacity as an intellectual writer. He said his presence was greatly appreciated.
“It’s such a privilege and honor,” he said.
Scalia, known for his conservatism, said the structure of the Supreme Court allows for fair arguments.
“One of the reasons our court is very prominent…is the fact that the dissenting point of view is set forth in our opinions,” Scalia said. “You get both sides.”
Scalia, a proponent of originalism, said the nation’s Constitution should not be manipulated to fit individual ideals.
“Originalism is a form of Textualism — it starts with the text,” he said. “But it gives the text that meaning which it had when it regard to Statutes, the U.S. Constitution should not follow the same practice. He said changing its meaning from era to era — though courts have been known to do so — should not be a common occurrence.
“For some reason, our Supreme Court— and of course our lower courts— have gotten into the habit of thinking that the Constitution morphs,” he said, “[that] it doesn’t necessarily mean what it does today when meant when it was adopted.”
Originalism was orthodoxy until about the middle of the 20th Century, Scalia said.
“Every judge purported to be an originalist,” he said. “Nobody said the Constitution changes.”
But he said that didn’t mean judges were exempt from distorting the document.
“Of course you had willful judges then just as you have willful judges now,” Scalia said. “You will never eliminate the willful judge. Society only matures, it never rots. The framers believed it could rot, that’s why they established some firm baselines.”
Though some believe the Constitution to be a “living organism” that must grow within a governing society, Scalia says that is not the case.
“The Constitution is not a living organism,” he said, “it’s a legal document, and it means what it said at the time. And if you think that the proponents of a living Constitution want to bring you flexibility, think again.”
Scalia said him being a backer of originalism should not be construed into a fight between conservatives and liberals.
“It’s simply not true,” he said.
The Constitution is captivating, according to Scalia.
“It is so nice to think that whatever you care passionately about … it’s right there in the Constitution,” he said. “All you have to ask is ‘how strongly do I feel about it?’ If you feel really strongly, it’s there.”
He said originalists often have to reach conclusions that they don’t necessarily like, but that the main attraction of a living Constitution is that it plays to the preferences and biases of judges.
“It’s hard to talk people out of it,” Scalia said. “It’s so seductive.”
Originalism is the only game in town, according to Scalia.
“What else are you going to use? Natural Law?” he asked.
Scalia, a graduate of Harvard Law School, was appointed to the Supreme Court by former President Ronald Reagan in 1986.
A question-and-answer session with law students immediately followed the lecture.