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Friday, May 19, 2006 

Scalia and Alito Around Town

Justices Antonin Scalia and Samuel Alito were in attendance at the National Italian American Foundation luncheon.

Justice Scalia dining with Chairman Frank Guarini

Justice Alito greeting Chairman Guarini, who looks like he just ate an entire lemon

In his speech, Justice Scalia took Congress to task for trying to legislate the foreign law debate. Chief Justice Roberts and Justices Scalia, Thomas, and Alito reject the use of foreign law when interpreting the Constitution. The article quotes a favorite Scalia line of attack...
Scalia has argued that his colleagues have used foreign law to support decisions that would otherwise have no basis, and that they cherry-pick foreign precedents that support their views. "You will never see foreign law cited in any of our abortion cases because we're one of the few countries that permits abortion on demand," Scalia said yesterday.
However, Scalia rejects the idea that Congress should be passing legislation about how the Court handles this situation...
"It's none of your business," he said, referring to Congress. "No one is more opposed to the use of foreign law than I am, but I'm darned if I think it's up to Congress to direct the court how to make its decisions."

The proposed legislation "is like telling us not to use certain principles of logic," he said, adding: "Let us make our mistakes just as we let you make yours."
I think that Scalia is certain that he will win this intellectual argument on the Court, and he doesn't want those goofs in Congress sticking their noses in here. He lost in his crusade to reject the use of legislative history, but he's got more allies on this point. He'll probably win in the end.

Scalia's the man! How'd your exams go? When do we have to start paying by the hour? LOL

Exams went as well as could be expected. I'm happy with the one grade I know so far.

Hourly rates start in one year.

I don't think the battle against legislative history is lost; certainly, a lot of progress was made in the early years, and just as certainly, there's been some retreat of late (not helped, I would venture, by a lack of support from Brother Clarence). However, OTOH, I think that on balance, the front lines are still dig further forward than they were on Scalia's arrival, and in the long view, I think that today's lawyers and law students -- tommorow's judges -- matured in an intellectual environment where they were given far more reason to question the use of legislative history. And that is in significant part thanks to judges like Scalia and Kozinski. The reality is that I think that a lot of Scalia's accomplishments have been foundational: he's marshalled the armies, he led the charge, he's personally dynamited the doors to the enemy's keep, but I think it is probably fair to say that he will not be the one to capture the king.

So in any event, tenuous metaphors aside, although the battle has not been won, it certainly has not been lost, and I think that the battle is joined, and reinforcements are on the way, as long as the Republican base doesn't do something stupid, a la 1992, this fall or in 2008.

He sure does look pretty healthy for a chap who turned seventy this year, by the way, doesn't he?

Scalia does look like he's in excellent shape. I got to see the man in the flesh earlier this year, and he looked great.

You make a good point about the legislative history battle. Scalia didn't seem to have much support on the Rehnquist Court. But as you pointed out, there is a new crop of law folks who have the Scalia point of view. In my Legislation class, we read an Easterbrook case that was very critical of legislative history then spent a lot of time discussing it. While I'm sure that a lot of the class was unpersuaded, I'd bet that many people liked the idea.

It will be interesting to see how the Scalia's, Easterbrook's, and Kozinski's shape the next generation of lawyers.

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