What Scalia Did for Undergrads

Justice Scalia had an important impact among many college students, certainly among mine, and especially among those who  often or usually disagreed with his conclusions.

I taught law-oriented classes for thirty-five years—constitutional law and politics, civil liberties, criminal law and justice, jurisprudence and legal theory, and the First Amendment. During this span, Scalia’s opinions were ever-present pedagogical companions in our classes, making him feel like a colleague, even though we never met. More importantly, his impact upon my students can point to what a university should be.

Campus Censorship Returns

I taught at one of the most notably progressive universities in the country, and many of my students came to class predisposed by the student opinion grapevine to dismiss or disrespect Scalia’s thinking because he was a conservative. But such students were often shaken out their dogmatic slumbers by reading Scalia’s cases, and, hopefully, by noting the due respect—critical as well as appreciative—that I exhibited while leading the discussions.

The first lesson students learned was that stereotypes are often wrong, or at least incomplete. Though many of Scalia’s flamboyant opinions did not constitutionally support such liberal causes as gay marriage and abortion rights, others provided protections for free speech, the privacy rights entailed in the Fourth Amendment, and the rights of terror detainees. And his decisions regarding such things as checks and balances cut different ways politically. The reason for these ostensibly unexpected results was that Scalia’s opinions were guided by a judicial philosophy that did not always lead to conventional conservative conclusions or his own personal preferences. Constitutional truth is not the same thing as your own preferences.

A second, related, lesson harkens back to Plato’s archetypal discussion of justice in Book I of The Republic, where Socrates and Thrasymachus debate whether justice is something other than that which serves the interests of those in power. Applied to our classes the question was whether a constitutional decision reflects a striving to find impersonal constitutional truth or simply the value or political preferences of the Justices. For example, were Scalia’s opinions regarding abortion rights and the death penalty manifestations of his own values, or of his reading of the constitution?

Scalia’s vibrant and forceful style could bear the appearance—and reality—of self-assertion; but his consistent referral to originalism, textualism, and the principle of judicial restraint pointed to something beyond the self. Such acknowledgement and deference to truth and meaning outside one’s own personal needs and preferences is the beginning of intellectual integrity and even wisdom, as Socrates—the founding father, as it were, of what ultimately became higher education—taught.

Not Always Disinterested

Alas, like all Justices and human beings, Scalia was not always successful in separating his own preferences from the law. Human nature will not countenance complete disinterestedness, nor should it. But it is a matter of degree, and bearing witness to the struggle between reason and self-interest teaches us something fundamental about the stuff of which humanity is made, and how to make the most of it.

Indeed, liberal democracy itself is premised upon striving to achieve a productive balance between universal justice and the self-interest that is an intrinsic element of the pursuit of happiness and liberty itself. In Federalist 51, James Madison wrote, “What is government itself, but the greatest of all reflections into human nature?” So were the most important Scalia opinions.

Third, students were impressed by the spirit and élan of Scalia’s pen, and the character it evoked, which made studying constitutional law exciting and showed students how and why the Constitution is important to our nation’s fate. Most importantly, Scalia’s writing highlighted the virtues of intellectual courage and honesty—virtues that lie at the foundation of First Amendment theory and jurisprudence. Such virtues need much more support on college campuses today as the bloated sensitivity bureaucracies and increasingly misguided student leadership call for more “safe spaces,” “trigger warnings,” and what Greg Lukianoff of the Foundation for Individual Rights in Education has labeled “the escape from freedom of speech.”

Though he did not often talk explicitly about courage, Scalia’s fearless opinions simply embodied this virtue. And his free speech opinions empowered the speech of dissenters. On a personal note, his controversial pro-free-speech majority opinion in R.A.V. v. St. Paul (1992) literally stopped the University of Wisconsin Board of Regents in their tracks from adopting a restrictive new student speech code in the spring of 1992. This decision and its impact played a role in the ensuing success of the free speech movement at U.W. Madison of which I have been proud to have participated—a movement that included many students over the years.

Though he did not often talk explicitly about courage, Scalia’s fearless opinions simply embodied this virtue. And his free speech opinions empowered the speech of dissenters. On a personal note, his controversial pro-free-speech majority opinion in R.A.V. v. St. Paul (1992) literally stopped the University of Wisconsin Board of Regents in their tracks from adopting a restrictive new student speech code in the spring of 1992. This decision and its impact played a role in the ensuing success of the free speech movement at U.W. Madison of which I have been proud to have participated—a movement that included many students over the years.

Students learned ways to think more conceptually and analytically. Scalia eschewed the mushy two- or three-part tests that characterized so many Supreme Court decisions before his time in favor of more analytical opinions based on concepts linked to the text, historical meaning, and precedents. This emphasis called upon students to respond with reasons rather than personal preferences or sloppy thinking.

A classic example of this effect that many students commented upon was his dissent in Hamdi v. Rumsfeld, the 2004 case dealing with terrorist enemy combatants. The plurality opinion applied a makeshift balancing test that Scalia thought constituted a wooly subjective deference to the Executive branch that was not justified by the Constitution’s text. His lonely 1988 dissent opposing legislation creating an independent prosecutor in the executive branch is another example of  this same reasoning. Today that dissent is widely considered the best constitutional position.

He was immune to fears of public or elite opinion, as his dissents in some privacy cases, First Amendment cases, and the independent prosecutor case revealed. In Holloway v. U.S. (1999) he dissented when the majority held that a car-jacker had the requisite criminal intent to kill when he told the driver that he would kill him if the driver did not surrender the car. According to Scalia, “conditional intent”—I will do X unless you do Y—is not criminal intent per se. It only becomes intent if the condition is not met. He wrote the opinion at a time when national anger over carjacking was high.

A Source of Tension

Finally, Scalia’s opinions embodied a tension that is essential to the normative order of liberal democracy and to the thriving of higher education. A meaningful life and citizenship dictate that one must stand for what one believes, that an unprincipled life is less worth living. (Think “Live Free or Die”) But a democratic society beholden to the natural and experiential fact of human differences also requires citizens to harbor due respect for the rights of those with whom they disagree. Civic and constitutional virtue entail an ironic tension between self-assertion and restraint—a tension Justice Oliver Wendell Holmes captured in the most famous of all free speech dissents, Abrams v. U.S. (1919), which laid the foundation for what later became the Modern Doctrine of Free Speech. Holmes asserted that the strong commitment to “fighting faiths” must not be allowed to stifle disagreement. The Constitution is not only about doctrines and laws, but also about a type of character. As are universities.

Scalia’s judicial philosophy was a living example of Holmes’ logic. His strong and sometimes strident opinions stood out for their audacity and commitment to constitutional principle as he understood it, while his underlying theory of judicial restraint was based upon leaving most important normative questions to be decided by the democratic political process unless the Constitution clearly dictates otherwise. He railed against what he called an elitist “Nietzschean Superman” Court of nine unelected lawyers who too often, in his view, usurped the power to decide supra-constitutional normative disputes. At the same time, no Justice displayed the Nietzschean virtues of intellectual courage and aggression more fully.

But if Scalia’s jurisprudence were to prevail, “We the People” would have to fight among ourselves to resolve most, though not all, contentious normative questions. That’s what it is to be self-governing. And this is what we strove to do in class, where we came to think ourselves empowered, however temporarily, to consider constitutional meaning for ourselves.