Thursday, January 28, 2016

Dialogue session with Justice Antonin Scalia at NUS Law

Antonin Scalia, an Associate Justice of the US Supreme Court, visited my school yesterday for a dialogue session, which I attended. Justice Antonin Scalia is probably one of the more colorful judges on the US Supreme Court bench. At least, I hear more about him than the other Supreme Court judges. The other judge that I do hear and read somewhat about in the news is Justice Anthony Kennedy. The more popular American media outlets that I come more often across tend to be left-wing. They are shared more often by my peers on facebook, and have more channels on my cable television subscription. These include online news media such as New York Times and the Washington Post, and television shows such as The Daily Show with John Stewart, and Real Time with Bill Maher. Justice Antonin Scalia is one of the subjects which these more left-leaning media would lampoon or criticize. My more conservative friends in Singapore, especially those in my Christian community, have a much more favorable view of Justice Antonin Scalia, and I believe this is likewise in the US if I should watch some conservative television channels like FoxNews.

One of the reason why Justice Antonin Scalia would be viewed more favourably by social conservatives is because he is more guarded against reading certain rights, such as right to abortion or same-sex marriage, as stemming from the American Constitution/Bill of rights. His position would be that these rights ought to be legislated by the government of the respective states rather than through a blanket constitutional guarantee when the constitution doesn’t say anything explicit about providing for such rights. He propounds a originalist textualist approach towards interpreting the constitution, which is an even more restrictive approach than textualism per se in that the meaning that can be inferred from a statutory text is limited to what it could possibly encompass during the time it was promulgated to the public at large. Proponent of an alternative approach towards interpretation would suggests a ‘living tree’ approach, such that the Constitution should be read to correspond with the needs of its times, or of its ethos. For an enlightening discussion on this topic, see this video featuring a debate between Justice Antonin Scalia and Justice Stephen Breyer. Justice Stephen Breyer posits that there are underlying principles undergirding the Constitution that makes the Constitution relevant and applicable to social issues beyond the time of its enactment

Indeed, one of the pet subjects talked about by Justice Antonin Scalia in the dialogue session yesterday was his adherence to his preferred form of interpretation jurisprudence. Words, he says, must be given their ‘fair meaning’, according to the texts in its contexts, rather than subverted from this by some other broader method of interpretation that are prone to the subjective whims of individual judges. From the Wikipedia page about him, it says that he also dislikes using legislative history as a tool for interpretation. Legislative history involves things like reviewing changes to a statute over time to determine how to interpret the words of the statute. I am not sure whether Justice Antonin Scalia frowns upon using parliament/Congress readings from when the bill is being passed to aid in interpretation of the statute. At least in Singapore, this is allowed in the Interpretation Act section 9A, and is not discouraged.

There were several other things that were talked about at the dialogue session. But at least two of the students at the dialogue session asked him questions relating to Obergefell v. Hodges, the case where prohibition against same-sex marriage was ruled as unconstitutional in the US. The first student asked Justice Scalia what he meant when he said that the decision didn’t affect or interest him that much as reported in some article. I suppose why people found this remark by Justice Scalia puzzling was because it seem relatively indifferent compared to his dissenting judgment which was rather forceful and scathing of the majority judgment. Justice Scalia replied that what he meant by that was that even though same-sex marriage was deemed a constitutional guarantee, he as a Roman Catholic was still free to not practice it or to recognize it personally, and as such, it doesn’t affect him personally, though he acknowledged that it might have some repercussion on related issues such as whether a priest can refuse to solemnize a same-sex marriage. I wonder though what Justice Scalia would say if an analogous case were to come before a lower court subsequently. Would Justice Scalia condone a lower court judge bucking the trend of precedence and doing a Kim Davis by upholding a prohibition law against same-sex marriage as constitutional? Kim Davis is the county clerk for Kentucky who gained international attention when she defied a US federal court order to issue marriage licenses to same-sex couples following Obergefell v. Hodges. I doubt Justice Scalia would condone that, as much as he might be disagreeable to the majority judgment in Obergefell. The second student asked Justice Scalia whether his scathing remarks in his judgment affected relationship with his colleagues on the bench. Justice Scalia replied that all said and done, he did shook hands with the other judges whose opinions differed from his, including Justice Kennedy. I don’t know what relationship is like between Justice Scalia and all the other judges, but I have read at least that Justice Scalia and Justice Ruth Ginsberg are good friends, even though they stand on opposite sides on many issues of the law, especially where there is a divide of social ideology.

In response to the moderator's question 'What makes a good lawyer?', Justice Scalia began by saying: "Instead of telling you what makes a good lawyer, let me tell you what makes a bad lawyer." He continued, "A bad lawyer; when the judge asks him a question in the middle of his oral argument to the court, rolls his eyes upwards, as if towards the ceiling of the Supreme Court being a miles high above him." Justice Scalia rolled his eyes upwards and sighed in a disgruntled tone to mimic how such a lawyer would react to the judge's interjection. "He does this to express his displeasure that he is being interrupted in the midst of something important in his speech." "But it's when the judge asks a question and you answer that question; That's when your oral argument to the court is actually important!", Justice Scalia bellowed emphatically. Indeed, Justice Scalia is known for his inquisitorial approach in the courtroom, and is reputed for asking more questions from the bench than any of his other associate judges. I guess some lawyers might not take too well to being interrupted in the middle of their oral presentation by Justice Scalia, but Justice Scalia would think that they are missing the point since their oral presentations are not addressing the points he wants clarified.

I wish I had the opportunity to ask Justice Scalia for his personal insights about making sense of the depiction in the American media about the judiciary being as polarized as its politics, but I didn’t get to ask it due to lack of time, and the dialogue session had to end. It was actually my fault, because I tend to be hesitant to raise my question in a crowd until the last minute. From my casual viewing of sources from the American Media, a lot of things seem to be polarized between left and right, liberals and conservatives, democrats and republicans. Is this necessarily an accurate picture when it comes to the American judiciary as well? I believe that there are many issues where things are not as polarized, or at least, not along the same lines as the liberal and conservative agenda. Most areas of law involve somewhat mundane issues such as determining liability for breach of contract and the appropriate remedies to be awarded, compensating victims of accidents and torts, deciphering the Bankruptcy code, and unraveling the mysteries of the Tax Act, etc. There is little to disagree about on these issues based on liberal or conservative ideologies. I wanted to glean whether Justice Scalia adhere to his interpretation jurisprudence because he genuinely believes that this is the right way of doing so, or whether there is some other motivations to it, such as politics? I believe some people who believe in the realpolitik or legal realist brand of school of thought would construe it as the latter. That is however a question that cuts close to the heart, and I doubt that those whose motivations are in the latter category will be honest about it. At least from my impression, Justice Antonin Scalia’s adherence to his espoused method of legal interpretation seems to be out of his genuine conviction that this method of legal interpretation is sound on its own merits, rather than out of some other motivations that is political in nature. 

Search This Blog