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Scalia on Con Law: It’s all about standing

Thursday, Apr 12, 2012

Separation of powers focus of Justice Scalia’s guest lecture to 1Ls

-By Lori Craig

Supreme Court Justice Antonin Scalia opened his April 10 Constitutional Law lecture at USC Law with a question.

What makes America the “freest country in the world?” he asked, before speculating that most students in the room — as well as most people in the country — would say it is the Bill of Rights.

But it’s not, according to Scalia.Justice Scalia teaches 1L ConLaw class

“If you think for a minute, is it not the case that every dictator in the world has a bill of rights, every banana republic, every republic has a bill of rights?” Scalia said. Even the bill of rights for the former Soviet Union, on paper, “was wonderful; it was better than ours.”

What’s more important is the structure of our government, the separation of powers that is built into the United States Constitution, he said.

“We are the only country in the world where the executive is not the tool, is not the creature, of the legislature,” Scalia said. “We not only have a separately elected president, we give him veto power so he’s essentially the most powerful vote in Congress.”

Scalia was the guest professor for the entire first-year class the morning of his visit to USC Law. About two-thirds of the class filled the classroom for Scalia’s lecture, while the rest watched a live feed. Later in the day, he had lunch with faculty and students, and he met with representatives of the USC Law Federalist Society before delivering the 2012 Roth Lecture [read more here].

The divide between the branches of the federal government and the two-party system makes passing legislation very difficult — but that’s the point, Scalia said.

“The framers would have said, ‘Yes, this is just the way we wanted it,’ because they thought the principal protection of minorities lay in the difficulty of passing legislation,” he said.

That’s where the doctrine of standing comes in. Standing is the legal right to bring a matter to court: To sue, people must be able to prove that a law has or will negatively affect them. It might seem dull, but it is a significant aspect of the separation of powers, Scalia said. American judges are given a tremendous amount of power, but thanks to limits on who can sue and why, there are a number of issues or unconstitutional actions that will never merit judicial review.

For example, “I think it’s got to be unconstitutional not to publish the CIA’s accounting, but that'll never come to court,” he said.

Justice ScaliaTouching on his originalist interpretation of the Constitution, which was the topic of his Roth Lecture, Scalia said the separation of powers can be understood by looking at what was meant by the framers, which leads to the doctrine of standing.

“Mostly, we decide what the president can do on his own on the basis of historical practice,” Scalia said. “To understand the executive power, the legislative power, the judicial power, you have to look at what they thought it was.”

Students asked about the 17th Amendment and the decline of states’ rights — “We passed the 17th Amendment in 1913 and you can trace the decline of states’ rights through the rest of the 20th century. They’re gone,” he said — the fairness of U.S. presidential elections, the protection of minorities, the polarity of the Supreme Court justices, and rights of voters in the South, which Scalia declined to answer, anticipating a future case. “You know we’ll do the right thing, or you know what we do will be right,” he said.

Scalia also answered questions about how to be an effective lawyer, how students might secure a clerkship with a Supreme Court justice, and how to achieve a work/life balance as a working lawyer.

In response to the last, Scalia said that he chose to work at a firm where every associate had a chance to make partner and where he was not expected to work every weekend.

“Those firms are out there, and they’re worth looking for,” he said, adding that lawyers need to get involved in their communities. “It’s not a matter of being lazy, it’s a matter of your having other responsibilities than making money at a law firm.”

Students said they appreciated Scalia’s candor.

“He was a little funny, a little entertaining, and it was interesting to hear his blunt perspective that was different from what you normally hear,” said Narain Kumar ’14.

The Federalist Society board with Justice Scalia
 The USC Federalist Society board with Justice Scalia and
 Dean Robert K. Rasmussen

A group of students who share Scalia’s originalist perspective — board members of the USC Federalist Society — sat down for an intimate meeting with Scalia and Dean Robert K. Rasmussen. Scalia expressed surprise when each of the 10 students said they had read “The Federalist Papers.”

“It was a joy getting to hear ardent support for originalism directly from the influential judge that supports it most,” said Kyle Batter ’14, 1L representative of the Federalist Society. “Justice Scalia points out the ‘slippery slope:’ If the mere nine members of the court can alter due process and equal protection to include anything they see fit, then the Constitution doesn't mean anything whatsoever.

"Justice Scalia points out that if the general population wants more things in the Constitution, then they should ratify a new amendment through the legislative process instead of just inferring that the Constitution contained what they wanted it to contain in the first place.”

-Photos by Mikel Healey

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