It's not often one gets the opportunity to cover a local speech by a Supreme Court Justice so I welcomed the opportunity to see Justice Antonin Scalia in person. After all, you never know what the witty, gregarious and right-wing rigid Scalia will say. He was the guest speaker at a law school alumni dinner taking place at a grand resort hotel (the one where the Russians and Japanese stayed during their peace talks in 1905) along the New Hampshire Seacoast.
I hoped Scalia would come with rhetorical guns a blazing given that he was less than a month away from his latest headline-grabbing moment. Scalia drew gasps from the Supreme Court gallery during oral arguments on the troubling case that could put an effective end to the Voting Rights Act of 1965. In a bout of tortured ideological reasoning Scalia dismissed the broad and near unanimous bipartisan Congressional support for a renewal of the law in 2006. Scalia brushed aside such legislative solidarity to protect the voting rights very likely attributable to a phenomenon that is called perpetuation of racial entitlement.” Talk about giving Congress and the people that elected them the back of the judicial hand!
Of course we now know the inside joke when Scalia backed up this dubious assertion with this gem: "It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes." The joke is that Scalia himself coined the phrase in a 1979 law school article that reduced affirmative action programs to a snappy one-liner: "the disease as cure." (Read the fun stuff at Rachel Maddow blog.) Scalia likes to pride himself on intellectual rigor (see below) but quoting your own invented thesis as a reliable outside source really does push the credulity boundary to the limit.
In New Hampshire Friday night Scalia was on his best behavior, not at all the "troll" (thank you Rachel Maddow) of "racial entitlement" infamy (you can read my Portsmouth Herald article here). He promised to stay away from controversy but wanted to court it anyway, even if on a minor scale. Using a very broad brush, he called modern legal education a "failure" and focused on one of the culprits. It seems, there are too many elective courses in law school curriculums these days and not enough doctrinal class immersion -- which results, he said, in not enough appreciation of the "austere pleasures" of discipline.
Scalia explained was too bad there were so many "law and" courses that distract the minds of law students because they are disconnected from the law and this had led to a severe intellectual weakening of the legal flock:
"We now have classes in the law and ... the law and literature, the law and feminism, the law and poverty, the law and economics."Heaven forbid if law school students broaden their minds beyond corporate law, torts or, Scalia's specialty, administrative law. Go to the opera on your time, he said between the lines, when there’s another contract law case to decipher.
Scalia was pedantic but gracious and told the audience with a laugh at the end of his speech that "I hope most of what I said has no application to this wonderful law school, and if it does I'm sure it will be remedied in the near future." He likely struck a chord with the audience about the law school professor focus on publishing and fame to the detriment of actual teaching. But unless I missed the point, Scalia offered little context about what this "failure" means (to the country or the direction of American jurisprudence) beyond the fact that he gives a dim eye to potential clerks with too many of those elective courses on their law school record.
Though the speech was mostly uncontroversial and a replay (Scalia said he had made a similar speech in Japan years before), it was instructive. Scalia may have a legal sensibility much more comfortable with the era from 1870 (the dawn of modern legal education at Harvard) to say 1937 (when the court shifted on the New Deal) than with our present day. This was a time when men were men, the Socratic Method was king, gays stayed in the closet and blacks didn't dare try to vote in the South of Jim Crow and lynchings.
Furthermore, Scalia talked a fair amount but had few recommendations for reversing this tide of failure. Mostly he was resigned to the fait accompli of a crumbling civilization. I asked a lawyer leaving the event (who didn't want to be quoted or named) what they got out of the speech and this lawyer told me it was entertaining but was disappointed it didn't amount to much.
In my soon-to-be-published comic and darkly satirical novel "The Execution Channel: A Political Fable," I imagine a near future in 'Real America' with a new political party (Real American Party) that has the Ayn Rand/Tea Party zealots in control of large swaths of the country. In one of the minor plot twists, the newly renamed Liberty Court in 2017 abolishes the appeal process for capital punishment cases in part because appeals are economically inefficient and bad for a healthy "Randian" free market. I drew on Scalia's radical and eratic approach to the Constitution (and the legacy he is leaving to his legal acolytes) for the inspiration behind this imaginary legal ruling: "Justice delayed is justice denied is a state’s rights issue that demands precedence over quant notions of due process.”