Controversy Erupts At A T14 Law School Over How (Or Even Whether) To Mourn Justice Scalia
Who's in the right here, the two law professors or the dean?
Justice Scalia: a polarizing figure.
How should one respond to the death of Justice Antonin Scalia, a controversial figure within the law? One can imagine a range of possible reactions, from mourning and tributes to criticism of his jurisprudence and speculation about his successor.
At Georgetown University Law Center, controversy has broken out over the law school’s press release, Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia. It went out on Saturday, February 13, the day that Justice Scalia’s death made the news. After the long weekend, on Tuesday, February 16, two longtime professors at Georgetown, Gary Peller and Louis Michael Seidman, basically issued a dissent (originally sent just to Dean William Treanor and the faculty, then later cleared for dissemination to the student body):
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Mike Seidman to Dean Treanor and faculty:
Our norms of civility preclude criticizing public figures immediately after their death. For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the “Georgetown Community” in the press release issued this evening do not reflect the views of the entire community.
Gary Peller, originally to Dean Treanor and faculty:
Dean Treanor, Staff, Students, and Colleagues:
Like Mike Seidman, I also was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.
Professor Peller’s statement goes on to say that Justice Scalia “was not a legal figure to be lionized or emulated by our students,” saying that he “bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the ‘culture wars’ he often invoked…. I don’t want to teach our students to hold someone like Scalia in reverence because he’s a ‘Supreme Court Justice.'”
(The statement goes on for quite a bit; read it in full on the next page.)
As noted by Blake Neff of the Daily Caller, “It’s hardly surprising that Peller cares little for Scalia. Peller’s own academic work is rooted in critical race theory and critical legal studies, two fields that can only be described as solidly on the political left. A major part of Peller’s work is denying the very existence of objective knowledge or the value of concepts like rationality, on the grounds that knowledge is just ‘a function of the ability of the powerful to impose their own views.'”
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It might not be surprising, but it is disappointing. I’m with Jill Switzer aka Old Lady Lawyer, who has called for civility in the wake of Justice Scalia’s passing: “What do we, as lawyers, do to model collegial behavior? We can talk about ‘civility’ and ‘professionalism’ ad nauseam, but unless we practice what we preach, those terms are just words, and we’re very good with words.”
Law professors aren’t ordinary lawyers; as educators, they have a special duty to demonstrate to their students the values of collegiality, professionalism, and respect for differing viewpoints. As one Georgetown Law source put it, “This is not what admitted students want to see when deciding between Georgetown and other T14 schools. An intolerant professor lecturing on the intolerance of a Justice.”
So what was the point of Professor Peller’s message? It seems he wanted to make clear that he is not part of the “Georgetown Community” mourning Justice Scalia: “That ‘community’ would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obsequiousness.”
I think Professor Peller is being a bit of a drama queen. Nobody would have read the (rather innocuous) press release and wondered, “Did Gary Peller sign on to this?” It’s pretty pro forma for law schools and universities to issue statements when justices pass away — especially when the justice in question had ties to the university. (Justice Scalia received his undergraduate degree from Georgetown before going on to Harvard for law school.)
Wondering if my own political views and my respect and admiration for Justice Scalia might be behind my opinion that Professors Peller and Seidman were out of line here, I discussed the matter with two of my liberal ATL colleagues, Elie Mystal and Joe Patrice. Elie shared my negative reaction to the professors’ messages, but Joe was willing to play devil’s advocate:
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My impulse is to dismiss the press release in the same way I’d dismiss “mere puffery.” Statements like that are a nicety extended upon the death of a public servant. That said, when Chief Justice Roger Taney died, The New York Times wrote of Dred Scott, “It came, we have the charity to believe, from a sincere desire to compose, rather than exacerbate, sectional discord. But yet it was none the less an act of supreme folly, and its shadow will ever rest on his memory.”
The New York Times has not and will not write something that biting in the immediate aftermath of Justice Scalia’s death. Yet — and with no intention of downplaying the evil of slavery through any comparison — to what extent should legal scholars and commentators not hold Scalia accountable for his Lawrence dissent? For routinely voting to undermine voting rights? For assaulting affirmative action? For seeking to roll back abortion rights? For voting to strip the actually innocent of a challenge to their death sentences?
Are we too dismissive of those who lived in genuine fear of Scalia’s rulings and the impact they might have on their real lives, loves, and basic rights? Scalia sat for life in a position to rule on existential issues for many Americans. When there’s no election to vindicate your rights, just the march of time and the inevitability of death, it’s hard to blame people for wishing to opt out of glowing memorials arguably done in their name.
But before we make a big deal out of the modest complaint of these faculty members, let’s remember what George Templeton Strong wrote “The Hon. old Roger B. Taney has earned the gratitude of his country by dying at last. Better late than never.”
So whichever stance you take on these dueling statements, America in 2016 looks positively civil.
See also this commentary from Rabbi Michael Lerner, editor of Tikkun magazine, praising the “sane words” of Professor Peller and arguing that “[s]o many Americans would have been much better off had Scalia never been appointed to the Supreme Court.”
For a rebuttal of sorts to Joe Patrice and Rabbi Lerner, here’s an excerpt from the message that Dean Treanor sent out this afternoon, essentially standing his ground and defending the appropriateness of the original press release:
I issued a statement on Saturday saying that the law school community mourned the Justice’s death. As you may know, some faculty have disagreed with my statement. I am writing now to reaffirm my belief that this a time for us to mourn. Justice Scalia was an individual who provoked strong and divergent views; the debate about his legacy is long-standing, and it will continue for many years. But this moment is a moment of grief. It is a time of loss and a time when many in our community are in pain. It is a time for mourning.
Readers, what do you think? Take our poll below, and feel free to express yourselves in the comments (especially since the poll presents a binary choice, and perhaps your view lies somewhere in between).
UPDATE (2/18/2016, 11:45 a.m.): Two of Georgetown’s prominent conservative professors, Randy Barnett and Nick Rosenkranz, have issued this response to the Peller/Seidman messages.
UPDATE (2/19/2016, 11:05 a.m.): Professor Peller claims that he’s been defamed by the Barnett/Rosenkranz response. Most of the Georgetown faculty and staff are tired of this controversy.
UPDATE (2/23/2016, 12:15 p.m.): Check out what Georgetown’s Black Law Students Association (BLSA) has to say about all this.
In general, whose side do you take in the controversy at Georgetown Law over responding to Justice Scalia's passing?
Loading ...(Flip to the next page to read the original statement, the statements of Professor Seidman and Professor Peller, and the rebuttal of Dean Treanor.)
