Speaks to Brooklyn’s legal community
By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
Brooklyn once again welcomed United States Supreme Court Associate Justice Antonin Scalia, a distinguished jurist of America’s highest court, Friday evening. Originally scheduled to be held at a Brooklyn Law School (BLS) venue, the overabundance of interest caused BLS organizers to host the event at the Harvey Theater at Brooklyn Academy of Music —a venue with a seating capacity of 834.
Scalia’s presence and discussion drew a large audience of BLS students, professors, local lawyers and legal dignitaries across the state to the theater in Fort Greene. Former New York City Mayor David Dinkins, Chief Judge of the Eastern District Carol Amon and New York State Bar Association President David Schraver were in attendance for the rare opportunity to hear one of the final arbiters of American jurisprudence speak candidly on constitutional issues, recent case decisions and the role of lawyers and jurists in America’s legal system.
“I am deeply honored to welcome one of this country’s most influential jurists, Justice Antonin Scalia,” BLS Dean Nick Allard noted in his opening remarks. Allard listed a number of ‘little-known facts’ about Scalia to ease the evening’s festivities from the assumption of a formal lecture to the realization of a more relaxed conversation. Scalia, Allard remarked, “provokes laughter more often than any of his colleagues during oral argument.” This comment itself garnered significant chuckles from the crowd.
Seated on stage with Scalia and serving as moderator was Fox News’ Senior Judicial Analyst Andrew Napolitano. Diving right into discussion, Scalia made clear his presumption of the role of a lawyer: to enforce American law as enacted and ratified by the majority.
Knowledge of Scalia’s oft-times controversial legal philosophy allows for the understanding of Scalia’s belief about what a lawyer’s job is. Touted as an originalist—one who believes that the U.S. Constitution should be interpreted the way the founding fathers intended as opposed to as a document evolving with social mores and norms of the time — Scalia is often criticized as being against the protection or expansion of civil liberties, as evidenced in a number of his dissents issuing scathing commentary about the constitutionality of abortion and gay marriage, for example.
For Scalia, social issues such as gay marriage are ideas that are handled by natural law or moral law and not legal theory. “It is not my job to enforce the moral natural law,” Scalia noted. “If you want people to enforce the natural law, you should select philosophers, ethicists.” The role of an American jurist, however, is to enforce American law, he said.
“Lawyers’ work,” the justice explained, “[is] figuring out what a particular statute enacted by the American people says. Or what a particular provision of the Constitution, ratified by the American people, means.”
Scalia’s insistence on originalism serves as a grounding force for his legal beliefs and understanding of true democracy. Originalism is the “rule end of democracy,” Scalia noted. “Once you abandon originalism, there is no other criterion. Once you’ve abandoned that, you have ruined the system”
While Scalia’s views on how legal text should be read are more conservative than most, he made sure to clarify that he is not a textualist when it comes to the interpretation and application of legal doctrine to modern questions. Addressing the protection against cruel and unusual punishment detailed in the 8th Amendment, Napolitano asked what would have been deemed appropriate at the time of the amendment’s ratification that would be deemed too cruel today. Flogging, perhaps?
“If [flogging] was done widely at the time of ratification,” then flogging should not be deemed cruel and unusual by today’s standards, Scalia opined. But, Scalia cautioned, that the more absurd the example of unusual punishment is, the less likely it is to be utilized in today’s world. “Democracy is that the majority rules … the exceptions were imposed by the majority onto the majority.”
With each topic discussed -- flag burning, freedom of speech, protections against privacy invasion by the National Security Agency and the death penalty -- Scalia reiterated his stance that “it is lawyers’ work to say what the law is,” and not to determine moral natural law.
“I do not deny or disparage any rights… given by natural law, but the rights I enforce are the first eight of the [Bill of Rights],” he said.
Scalia spoke at the Brooklyn Bar Association this past winter to a much smaller crowd and a more contrived question-and-answer session. At the BAM event hosted by BLS, audience members were given an unfettered opportunity to ask questions of the evening’s esteemed guest. BLS students took full advantage asking pointed questions, many of which caused Scalia to pause and ponder before delivering an answer, including whether or not Scalia would retire from the bench to relieve retirement pressure from his friend and ideological opponent liberal justice Ruth Bader Ginsberg.
A particularly courageous first-year law school student closed out the Q&A session asking Scalia how he felt knowing that his dissenting opinions are sometimes used to incite hate. Bothered by the question, but mindful of the setting, Scalia noted that he does not write his dissents for hate. Rather, “I write my dissents for the students of law schools … for the next generation,” he said.