Faculty and students discuss Justice Scalia's lasting influence

By Allison Hight
U-M??Law

Students and professors at the University of Michigan Law School gathered together last week to come to terms with and better understand the implications of the passing of U.S. Supreme Court Associate Justice Antonin Scalia. A three-member panel composed of Michigan Law professors Richard Primus, Gil Seinfeld, and Kate Andrias? expressed their thoughts about the justice’s legacy and how his influence will continue in the future.

Primus, the Theodore J. St. Antoine Collegiate Professor of Law, focused on how Justice Scalia brought textualism and originalism to the forefront with his adherence to the idea of the “rule of law as a law of rules.” Primus, a constitutional law professor, explained that during Scalia’s education and early career, controversial decisions such as Brown v. Board of Education, Reynolds v. Sims, Miranda v. Arizona, and Roe v. Wade drew increasing criticisms that justices were becoming policymakers and departing too much from the meaning of the Constitution. Scalia championed textualism and originalism in the midst of this backlash, promoting the ideas symbiotically along with a broader national movement.

“He stood for and promoted this set of ideas of how to think about the law that were marginal before he started and are mainstream to dominant before he’s done,” Primus told the audience. “Justice Scalia had a larger impact on the way we think about the law than any other justice in my lifetime and probably longer.”

Seinfeld, who teaches Federal Courts and Civil Procedure, discussed what it was like to clerk for the justice.

“Justice Scalia once stuck his tongue out at me,” he began, recalling an occasion on which he and the justice disagreed. (Seinfeld was one of Justice Scalia’s so called “counterclerks”—the liberal clerk in a conservative chambers.) Seinfeld speculated that, had he been employed by one of the other justices, he might have been fired for striking the kind of tone he sometimes did with Scalia.

Challenging the audience members to a thought experiment, Seinfeld asked them to think of someone with whom they disagreed. He then further asked whether, if they spent a great deal of time with that person, they could treat him not just civilly, but with warmth and affection.

“It’s a hard thing to do,” he said, “but Justice Scalia did it, and I think it came easily and naturally to him.”

The only regret that Seinfeld voiced was that the justice did not exhibit more of the qualities that he demonstrated to him in private in public forums as well.

“I’m here to report to all of you, especially those of you who, like me, disagree with him deeply, that he was very, very hard not to like if you knew him personally,” he said. “I think we all have something to learn from that example.”

Drawing on her experience of first clerking for Justice Ruth Bader Ginsburg and then working in the White House on the nomination of Justice Elena Kagan, Andrias, a constitutional and labor law professor, provided a first-hand perspective of how the next nomination process might work. She described the Kagan nomination process, from Justice John Paul Stevens’s retirement announcement in February 2010 to the Senate vote in August, emphasizing the intense vetting that any candidate has to undergo from both opponents and supporters. She predicted that the next nomination process will be even more intense, with President Obama “facing an uphill battle.”

“The sheer importance of this one nomination might give us pause,” she continued, briefly touching on how this might make the country think differently about the lack of term limits for justices.

Andrias also reminded the audience that, political battles aside, it is important for the country to have a functioning Supreme Court and that if the process takes too long, “pressure might start to mount” to confirm someone.

The panelists addressed questions from some audience members about whether the influence of Justice Scalia will continue both in the Supreme Court and lower courts.

“It’s too soon to know,” said Primus, but he added that “originalism is not disappearing on the Supreme Court no matter who the next justice is.”

He explained that judges often use originalism when there is no precedent to decide a case, and that even those who do not identify as originalists still employ the idea in their reasoning and opinions. Whether or not the Supreme Court deemphasizes originalism going forward, Primus speculated, it will draw criticism either way, either “as a criticism of a court that does it less or a criticism of a court that does it differently.” If it does last, however, and if the ideological center of the court moves to the left, “it will turn out that originalism is much more liberal than people realize.”