they shouldn't have granted cert in Bush v. Gore. it was an election case, for goodness' sake! granting cert in that case makes any further claim of the importance of state's rights by any of the justices who did vote to grant cert ring completely hollow.

[/soapbox]

Justice Scalia speaking at HLS last year (not an exact quote... it was over a year ago):

"A lot of people like to criticize originalism. This reminds me of a story. 2 friends are camping in the woods when a hungry bear attacks their campsite. The two of them start running and the bear gives chase. One turns to the other and says, 'We're never going to outrun this bear!" The other replies, 'Outrun the bear? I don't have to outrun the bear. I just have to outrun you!' That's my response to the critics of originalism. It's not perfect, but it outruns all of the other interpretive theories out there."

For the record, I disagree with him, but he's incredibly entertaining to listen to.

A number of years ago I had the opportunity to ask him whether he could agree that certain technological advances couldn't have been foreseen by the founders and aren't there areas where originalism cannot apply? He responded with the example of a defendant being able to face their accuser and the case of a child rape victim being allowed to testfy via closed-circuit television. There is an argument that the founders didn't have closed-circuit television and couldn't have hypothesized a situation where a young victim could testify so that everyone could hear her, but she was shielded from the alleged rapist. But that argument is bogus, Scalia said, because if the founders wanted to allow such a scenario they could have. They could have allowed an accuser to sit behind a woven-rush screen.

Well I thought that was about the silliest thing I'd ever heard.

Nixon Peabody participating in an ATL roundtable? Talk about no shame.

Where have all the commentators gone?

I thought Scalia hated UVa and wouldn't speak there until a certain professor left or died or something. At least, that was the rumor at UVa when I was there '02-'05.

Well, Jeffries is leaving this year. Although, the two probably aren't connected as Scalia, in his Fed Soc speech, actually praised Jeffries' work.

He spoke at my school the year I graduated. He's too smart to field questions from the masses of idiot law students. They ask the same stupid crap (like the Bush v. Gore question) over and over again.

But I did really like listenting to the two stupid bitches next to me sneer about how dumb he was though. I'm sure their killing it somewhere at a local family law practice.

Technological advances in travel could not have been foreseen by the founders, so we should just scrap this citizenship by birth thing.

Scalia ain't got nothing on those UVA law students. The questioners KO'd Scalia hard-core! Heck, these students took Contracts and Torts -- they can tangle w/ Scalia any day.

It would have been just down-right stupid/naive to expect 1Ls to actually ask objective, respectful questions -- questions that actually solicited information rather than serve as a forum to project an amateurish opinion or play "gotcha" with a Supreme Court justice!

Lat,

Is it just my browser, or are you not allowing comments under the roundtable post? (maybe that's why the number of posts have dropped)

I just wanted to tell you to get a professional portrait done!!! You look like such a wanna-be in that roundtable PDF file.

Questioning the cert of Bush v. Gore will always be valid and will be a blemish on the Supreme Court forever.

I don't know what group is more annoying: the sheepish idolators that think Scalia is some intellectual god of or the hacks that try to call him an idiot.

Anyway, everyone knows that the most compelling reason to hate Scalia is because he's fat. Fat people don't deserve the respect of society at large.

It wasn't just us naive 1Ls that got pwned asking questions of Scalia. Two professors attempted Scalia take-downs... and failed. The first said Scalia's approach to only allow standing where particularized injury could be shown would leave "black holes" in the law. He gave an example of a 17-year-old pop star who wins the presidency due to massive popularity but falls short of the constitutional age requirement. Who would have standing to sue in this case? the prof asked. Scalia paused and then said, "Well if he won the election then I'm guessing somebody ran against him and lost. And that person could allege harm."
The professor stood there, speechless.
"Wanna try another one?" Scalia asked.
The audience roared with laughter.
Ouch.

4:25:

You switch subjects in your sentence, so it sounds like you are saying: "Questioning the cert of Bush v. Gore . . . will be a blemish on the Supreme Court forever."

Instead try:

Questioning the cert of Bush v. Gore will always be valid; Bush v. Gore will be a blemish on the Supreme Court forever.

-Grammuh Time

4:54:

Actually, Scalia answer is sophistic at best, hypocritical at worst. According to Scalia's jurisprudence, the "loser" would not have a particularized injury because (s)he didn't win the election. The "loser" can't demonstrate that (s)he would have won if it weren't for the 17-year-old's participation in the election, so (s)he can't show actual harm -- that's what Scalia would REALLY say if that case came down.

Scalia spoke at my law school a few years ago when I was a 2L. He was an engaging speaker and his sense of humor is appealing, but he was a bully all the same. In his talk (what I assumed was basically his standard "Originalism 101" speech) he used the phrase "originally intended" to describe what we should look to when interpreting the Constitution. He said that we should look to what the Framers "originally intended" in the sense of looking to their understanding of the definitions of the words they used. It's common sense and I don't have a problem with it, but I asked him the following question:

If we should look to the Framers' original intent when interpreting the Constitution, what makes it inappropriate to look at legislative history to ascertain the legislature's intent when they use particular words in today's statutes?

It's wasn't a "gotcha" question - I genuinely would like to understand the explanation for his different approaches to the Constitution and statutes respectively. I'm sure there is a reasonable answer that comes out of his particular philosophy, but I wanted to hear it out of the horse's mouth. Instead, I got this:

"I have never used the phrase 'original intent.' [Brief expansion on how he has never used the phrase 'original intent' but is always described as saying 'original intent.'] You thought you had me there, didn't you, young lady? Are you satisfied now?"

No, I wasn't. He assumed I was asking some gotcha bullshit question that I guess he has been asked many times before, instead of listening to my actual question, which was a request that he explain what can look to the newcomer (i.e. a LAW STUDENT - of which there were hundreds in attendance) like an inconsistency in his views. And he was obnoxious and condescending ("young lady?" what are you, my grandfather when he was alive twenty years ago?) to boot. It was disappointing.

Oh, poor baby. Did Scalia hurt your little biddy feelings? Did Scalia (a Supreme Court Justice) "bully" you or not show you the proper respect, which you earned through all your hard work in taking the LSAT and completing a year of law school (massive accomplishments worthy of the utmost respect indeed.)? I am shocked (shocked!) that Scalia would dare not treat you like an equal. Scalia, unlike many law school profs these days, doesn't have the patience to kiss everyone's butt and make everyone feel oh-so-special (he doesn't get course evaluations after all). I guess any reply less than "That was a great question, Ms. Smith. You are soooo smart!," and you feel that you're being bullied.

Our generation sucks.

By the way, the answer to your question is that Scalia doesn't care about "intent." He cares about what the ratifiers ACTUALLY PROMULGATED, not what they INTENDED to promulgate. If Scalia's critics bothered to read his writings rather than just dismissing him as some right-wing, gun-loving, gay-bashing "meanie" w/ a personality disorder, they might have recognized this subtle but crucial distinction..

Scalia is a hypocritical douchebag, he doesn't deserve any respect.

Student #2 = GUNNER

I would assume that the purpose of a question and answer session is so that the recipient of the question answer them. The question regarding intent of the framers versus intent of the legislators is a valid, and thought provoking question. The question deserved respect.

6:26, you're missing the point. The student asked a question, and didn't receive an answer. The student did not dismiss Scalia, but rather wanted his insight.
If someone is supposed to just "read his writings," what was the point of the Q&A?

Scalia slammed me too after I asked a question. At first I was really upset. But later during the reception, he came up to me, but out his fist, and said "respekt." I touched his fist with mine, and we were cool after that.

Anyone who thinks that the words of a bunch of old men more than two hundred years ago should be unequivocally to us today is either missing a few brain cells or just wants things to be they were in the good ol' days and is using the document as support for that. I think Scalia is the disingenuous category, not the idiot category.

He DID answer the question -- he told her that the premise underlying her entire question was wrong (he never said "original intent."). What is he supposed to do, pretend that her question's assumptions are correct and make up an answer to make himself look stupid just so she could look brilliant in front of her friends?

The term "gunner " is so annoying. It is used only by two categories of people:

(1) People who were overacheivers until they got to law school and then got slammed with crap grades. Everyone else who does well or wants to learn is a "gunner."

(2) People who do well, but feel guilty about it, so in order to preserve their mystique of coolness label everyone else who does well a "gunner."

-2nd Amendment Protects My Gunner Rights

6:26, you miss the point. My impression of Scalia based on my experience with him was that he is intelligent and a good speaker and obviously worthy of the same degree of respect that is owed to any equally accomplished jurist and thinker. But in my opinion, he is disappointing all the same, because unlike some other Supreme Court justices I have encountered (and I have encountered a few), he was disrespectful towards another human being in a context where it would have cost him nothing to simply treat the question as sincere (which it was) and give an actual answer. Perhaps you don't believe that we should value respectful discourse and substantive discussion even with lowly law students, but I do, and I don't think I'm alone.

It is a straw man to say that I expected to be treated as an equal. I didn't. There is surely some middle ground between total condescension and treating a law student as an equal. I have seen many accomplished people in the legal profession manage this with no apparent difficulty.

On the original intent thing, as I explained in my comment, the issue was that Scalia did note the need to consider what the Framers understood specific words to mean - because meanings shift over time, it is important to speak the same language that the Framers did when you're reading their most important writing. What they "ACTUALLY PROMULGATED" (shouting in original) is controlled by the language they spoke, and that's why we need to make sure we understand their words. If you don't like this idea, your issue is with Nino, not me. Maybe you should try asking him a question some time and see how it goes - I'm sure that you would enjoy a nice paddling.

And I'm sorry you hate our generation. Sucks to be you, but maybe a few more years of overreacting to other people's comments will make you feel better about it.

6:55. yeah, it sucks to have to actually use the political process to enact your agenda. It would be much easier to just circumvent it, redefine the Const however you want, and employ 5 liberal-elite judges to enshrine your Gen-x/y political views into the Const.

Why not just amend the Const if your views are so obviously right? Oh I know why -- b/c those stupid hicks in the flyover states (who "cling to guns and religion") would never ratify them. Democracy sucks, don't it?.

Okay, 6:57, did he answer the question when he told the guy who asked about Bush v. Gore to "get over it" and asked "do you really think we wouldn't grant cert."?

That's not the most brilliant legal analysis I've ever heard. Maybe I'm missing something.

6:57, he could have said, for example, "I know that in my talk I said the words 'originally intended', but people often misconstrue that term. Legislators today can be presumed to speak the same language we do, and we don't need to look beyond the words of a statute to interpret it at all. But for the Constitution, we need to understand the words as the Framers understood them." That would have answered my question without "assuming" anything.

7:00 PM: I think you're missing Scalia's point. First, it doesn't matter what the FRAMER's did/thought -- it matters what society at large (i.e., the RATIFIERS) intended. Scalia only examines the writings of the Framers in so far as they were educated people who may provide some insight into what people at the time thought. But it's not dispositive -- eg, even if we discovered a framer's diary saying that the 5th amendment was meant to protect abortion, it wouldn't matter to Scalia. It's the TEXT and the original understanding of it by the population at the time that matter. If that framer wanted to protect abortion, he should have said so explicitly in the Const, not sneak it in through his diary (ie, his supposed intent, which the rest of society may or may not have shared with him)!

7:00:

Your point is well-taken re: Scalia. He is a jerk. Plain and simple. (My words, not yours).

I will say that his method has a point, though. He treats the constitution and statutes the same. You look at what the words meant (at the time it was enacted). The reason is comes up more in the constitutional context, as opposed to the statutory context, is because the Constitution is a lot old than most statutes. There isn't the same language barrier.

Scalia distinguishes between the intent (what the drafters wanted the thing to say) and the meaning (what the thing actually says, in the language of the day). I am sure you can see they are quite different.

For example, if some legal document (constitution or statute) says that all yellow pets have first amendment rights, it would be important that the word "pet" only included dogs and cats at the time the document was enacted. It would NOT be important (to Scalia) that the drafters only meant to protect dogs. In other words, assuming all that is true, Scalia would hold that the document protects ONLY dogs and cats (not other "pets" as we might mean it today and as a "living constitutionalist" would say). Notably cats would be included despite the original "intent."

But doesn't he consider the federalist papers when he is interpreting the constitution? Aren't those exogenous to the document and only evidence of intent?

Cares no one that Scalia is fat?

Justice Scalia spoke in Cleveland a little over a year ago, and fielded questions from the audience. A high school girl, from a Cleveland school and who sounded intelligent and very sincere, asked Scalia what a young person could do to get to be in his position someday. To which Scalia promptly replied, "Good Luck!" To be fair, he did clarify it later - but I'm pretty sure the girl went home and quit school.

7:44: He should have said: Be a conservative ideologue when the Republicans are in power. And eat a lot of carbs (rubbing tummy).

Just to be clear - and come on guys, we've all been 1Ls before - 1Ls are capable of asking intelligent questions. Some of them. A few of them

... and that's why they should have prescreened before class. Those on the left ... may enter. Those on the right, head to the ...

Scalia is a complete hypocrite for revering an 18th century document but claiming that a decision from 2000 is too far in the past to discuss. Get over THIS, you fat fuck. And for all the Scaliaoisie who defend his fundamental right to get irritated by people who have the insolence not to be Supreme Court justices, isn't he pretty stupid for speaking at places like law schools where such people are known to congregate?

6:55 "Scalia is in the disingenuous category, not the idiot category"

-I think that's what Student #2 was implying...

Maybe A.S.hole could embark on a national healing tour. "My son died in Iraq." "Get over it!"
"I was tortured in Guantanamo." "Get over it!"
"The economy is a disaster." "Get over it!"
"I have a carafe of gravy and a straw." "Get over here!"

Scalia actually answered the questions at UVA at greater length than is excerpted. 'Get over it' wasn't his entire answer, he continued after the (loud) applause died down. He also answered the 'chimera' student and the professor at greater length.

Just to be clear.

FINALLY. The fat jokes. You all had me worried.

Did he address Gut v. Waistband (2008)? His dietary dissent makes a strong argument that butter and cheese, in liquid form, may be considered beverages.

Anyone remember the "Do you sodomize your wife" question at NYU from a couple of years back?

That justice has more chins than a Hong Kong phone book.

test

test

At Columbia last year:
Student (paraphrased): I consider myself a conservative and textualist, but I have a hard time with minority groups - along the lines of discrete, insular minorities. Shouldn't the Constitution provide some protection from "mob rule" that comes from a more subtle reading of the 14th Amendment?

Scalia: So, you don't believe in democracy. Next.

Scalia is just not that smart. Why?

1. Bush v. Gore: He needs to explain WHY they granted cert if he respects federalism and actually understands the Supreme Court's own equal protection jurisprudence. But he never does explain why, because there is no cogent explanation.

2. "Original intent" originalism is in fact what Scalia does advocate in the ramblings (often amusing, let's be honest) he calls opinions. Please read his opinions people (you know who you are) before pretending that original intent originalism is not the man's bag. That's EXACTLY what he's on about.

3. As pointed out above, Scalia's view that legislative history is rubbish chafes against how he interprets the Constitution.

Scalia is a good writer. But please, no one respects the man as a serious jurist, scholar, or intellectual. He's a joke. But he happens to be on the Supreme Court, so we wind up listening to the soup he feeds us anyway. Very sad.

Scalia is a nitwit. End of thread.

"no one respects the man as a serious jurist, scholar, or intellectual."

You might not respect the man as a serious jurist, scholar, or intellectual, but to say that no one does is factually wrong.

Bullying is the sincerest form of idiocy. The best way to avoid answering a question you don't have a decent answer for....bullying. The poster above is correct, when he is asked any question that points out that he is an idiot and a hypocrit (usually from law students) he simply blasts them as little thinkers. Hell, I would get tired of 2L's pointing out all of my faults a thousand times as well. Between that and being a lardass, it is easy to see why he is so bitter.

Not that I am a huge Scalia fan, but to be fair, the categorization of his answer to Student 1 is not complete. His point was that Gore brought it into court ergo it was going to be decided in court. The cert comment was that it was just too important a question for the court to NOT grant cert.

12:14: Ever heard of the "political question" limitation? When the question is that important, sometimes the Court is not supposed to grant cert.