Antonin Scalia, Constitutional Law, Federalist Society, Law Schools, Quote of the Day, SCOTUS, Supreme Court

Quote of the Day: Actually, They Do It All the Time; It’s Called ‘Legislation’

Justice Antonin Scalia

Congress has its job and we have ours…. They can’t tell us to set aside rules of logic!

– Justice Antonin Scalia, speaking over the weekend at the National Lawyers Convention of the Federalist Society. He was responding to a question as to whether Congress could pass laws dictating how judges interpret the law.

(Additional highlights from Justice Scalia’s speech, after the jump.)

There weren’t any huge surprises. For example, Justice Scalia’s reading recommendations — the Federalist Papers, Democracy in America, and his own book, Reading Law (affiliate links) — were exactly what you’d expect from the lovably conservative and curmudgeonly jurist.

This was somewhat amusing. From the WSJ Law Blog:

In the curmudgeonly category, the 76-year-old jurist said he was pained to hear “the illiterates who communicate with the public” on airlines. He objected in particular to an on-board announcement in which a flight attendant said it was “required that your luggage is under the seat in front of you.” (The justice apparently preferred the subjunctive “be” in place of “is.”)

(In defense of flight attendants, they often say something like, “Please make sure that your luggage is under the seat in front of you.” It sounds like the justice may have been looking to pick a fight.)

This might come as more of a surprise, from the justice who wrote the Court’s opinion in District of Columbia v. Heller. Per The BLT:

For Justice Antonin Scalia, cases before the U.S. Supreme Court involving the Bill of Rights are important, but they aren’t the ones “I live or die for.” That distinction, he said in a speech over the weekend, is reserved for cases that test the structure of the U.S. government, from separation of powers to federalism.

Even dictatorships can have a bill of rights written down, he said, but the structure of government is what ensures that laws are “not just words on paper.”

This is interesting coming from a textualist like Scalia. Rulings on the structural constitution, which often don’t have firm anchoring in specific words of constitutional or statutory text, sometimes get criticized as “judges just making stuff up.” Concluding that a given federal act violates federalism or separation of powers often isn’t as objective an enterprise as, say, parsing ERISA or the Internal Revenue Code.

Finally, during the question-and-answer session, Justice Scalia weighed in on legal education. From the FedSoc Blog:

The justice also gave advice as how to improve legal education, which he said focuses too much on antiquated common law jurisprudence: “It’s like teaching the skill of the buggy whip.” The great English common law judges were making law; but we Americans now have democracy.

Alas, not everyone at the convention was thrilled with the latest results of democracy. As an attendee, I could feel the gloom from the assembled conservative and libertarian lawyers. Going forward, it will be interesting to see whether the right can regroup and return to power.

Regardless of one’s political views, the Federalist Society’s National Lawyers Convention is always an enjoyable and educational event for legal nerds. I conducted much of my coverage via Twitter; you can check out my tweets, along with the tweets of many others, under the conference hashtag, #FedSoc2012.

At Federalist Society, Scalia Says He Doesn’t ‘Live or Die’ for Bill of Rights Cases
[The BLT: The Blog of Legal Times]
Justice Scalia’s Holiday Gift Guide [WSJ Law Blog]
Scalia Talk Concludes FedSoc’s 2012 National Lawyers Convention [FedSoc Blog]
Reading Law [Amazon (affiliate link)]

Earlier: Quote of the Day: Justice Alito on Yale Law School

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