By Publicola

Supreme Court Justice Antonin Scalia just concluded his most recent visit to the Harvard Law School campus, during which he delivered the inaugural Herbert W. Vaughan lecture. His talk, entitled Methodology of Originalism, was concluded with a classic Scalian half-growl, half-battle cry: “I do not have to prove that Originalism is perfect!” In my view, he ought to have added, “nor do I have to prove that Originalists are perfect.”

For those who didn’t catch Justice Scalia’s speech, it’s worth recounting the showdown that occurred toward the end of his talk. Professor Dershowitz, skipping over to the microphone with visible excitement, proclaimed with confidence that he could name twenty cases where Justice Scalia abandoned Originalist principles, purportedly so that he could reach a politically expedient result. The exchange was something of a caricature of the two men – Scalia dismissive, irritated; Dershowitz verbose, self-assured. After initially dodging the question, Scalia finally concluded that he simply was not an Originalist or a Textualist to the exclusion of being a judge who respects the value of stare decisis. There will be times when the original understanding simply does not provide the ultimate answer.

Professor Dershowitz’s line of questioning was, I think, fairly representative of a style of analysis frequently employed by many professors at this law school. From my own experience in Constitutional Law and similar courses, and from discussions I’ve had with classmates, it seems there is a tendency for professors to play “gotcha” with the Supreme Court. Ah ha! Justice Originalist has veered from the path of his own dogma. And look here! Justice Pragmatic considers original meaning. Hypocrite!

As I see it, there are a few possible reasons for taking this approach in the classroom. Perhaps the most obvious is that a professor may simply be a Crit. Or, perhaps a professor wants to teach us to break down legal arguments – to expose every contradiction and deviation from stated principles – so that we are better at building up such arguments ourselves. Or maybe (to take the least charitable view), it is just good fun to show that the Supreme Court ain’t all it’s cracked up to be. Any of those purposes are (to varying degrees) valid pedagogical motives. But our professors ought to be more upfront about what their agenda is, because without explaining the purpose behind such deconstruction it just seems as if we’re constantly knocking down straw men. Yes, Originalists are sometimes moved to a result by considerations apart from original meaning. But any Originalist will admit (as Scalia did Thursday) that other values can indeed come into play. The quick cry of politics! is too convenient to be of real educational value.

The failure of an Originalist to adhere to his own principles may reveal that judges are capable of inconsistency, but does that teach us anything about the merits of the methodology? I suppose the Crits would say yes. But in my view it seems a stretch to conclude that Scalia and others are engaged in a constant ruse when they talk about their interpretive philosophies. I think judges do believe in these doctrines, these faiths of interpretation, even if they are imperfect keepers of those faiths. And if that’s the case, shouldn’t our legal educations be aimed at equipping us to employ or counter these methods ourselves? To understand when and why an Originalist may look to stare decisis in some cases and not others? One cannot simply argue to a judge that the court itself is often inconsistent and thus that no reasoned, principle arguments are worth reciting. The cry of politics is too easy. And in any case, even if true, that realization is of no help in persuading a judge to a result. For judges, if not academics, are convinced that those who wear the robe are not political actors. We should learn to speak their language, and our professors should help us to do so.