Blog

Justice Scalia, who lived half of his life in northern Virginia, opined on the Commonwealth’s universities in the U.S. Reports. In United States v. Virginia, which considered the constitutionality of the Virginia Military Institute’s all-male program, Justice Scalia’s dissent weighed in on how Universities in Virginia–including George Mason–structure their policies to attract different types of students.

Finally, the Court unreasonably suggests that there is some pretext in Virginia’s reliance upon decentralized decisionmaking to achieve diversity-its granting of substantial autonomy to each institution with regard to student-body composition and other matters, see 766 F. Supp., at 1419. The Court adopts the suggestion of the Court of Appeals that it is not possible for “one institution with autonomy, but with no authority over any other state institution, [to] give effect to a state policy of diversity among institutions.” Ante, at 22 (internal quotation marks omitted). If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist. And where the goal is diversity in a free market for services, that tends to be achieved even by autonomous actors who act out of entirely selfish interests and make no effort to cooperate. Each Virginia institution, that is to say, has a natural incentive to make itself distinctive in order to attract a particular segment of student applicants. And of course none of the institutions is entirely autonomous; if and when the legislature decides that a particular school is not well serving the interest of diversity-if it decides, for example, that a men’s school is not much needed-funding will cease. 26

[ Footnote 26 ] The Court, unfamiliar with the Commonwealth’s policy of diverse and independent institutions, and in any event careless of state and local traditions, must be forgiven by Virginians for quoting a reference to “the Charlottesville campus” of the University of Virginia. See ante, at 20. The University of Virginia, an institution even older than VMI, though not as old as another of the Commonwealth’s universities, the College of William and Mary, occupies the portion of Charlottesville known, not as the “campus,” but as “the grounds.” More importantly, even if it were a “campus,” there would be no need to specify “the Charlottesville campus,” as one might refer to the Bloomington or Indianapolis campus of Indiana University. Unlike university systems with which the Court is perhaps more familiar, such as those in New York (e.g., the State University of New York at Binghamton or Buffalo), Illinois (University of Illinois at Urbana-Champaign or at Chicago), and California (University of California, Los Angeles or University of California, Berkeley), there is only one University of Virginia. It happens (because Thomas Jefferson lived near there) to be located at Charlottesville. To many Virginians it is known, simply, as “the University,” which suffices to distinguish it from the Commonwealth’s other institutions offering four-year college instruction, which include Christopher Newport College, Clinch Valley College, the College of William and Mary, George Mason University, James Madison University, Longwood College, Mary Washington University, Norfolk State University, Old Dominion University, Radford University, Virginia Commonwealth University, Virginia Polytechnic Institute and State University, Virginia State University-and, of course, the Virginia Military Institute.

Of course, Footnote 26 was occasioned by Justice Ginsburg, whose first draft referred to UVA as “the University of Virginia at Charlottesville.” Of course, no such place exists.

Scalia and Ginsburg reminisced about this exchange during a February 2015 event at GW:

The back-to-back banter illustrated good humor rather than genuine disputes. Justice Scalia recalled the 1996 case when the Supreme Court struck down the Virginia Military Institute’s male-only admissions policy. In the decision, Justice Ginsburg mistakenly referred to “The University of Virginia at Charlottesville” in a footnote, an error Justice Scalia was quick to point out.

She fixed the missive not by changing the name of the school, but by quoting another judge who had referred to the university in the same way.

“She knew it was wrong, but she was too proud to change it,” Justice Scalia remembered, crossing his arms in a pantomime of annoyance.

Also, Scalia’s comment that “Unlike university systems with which the Court is perhaps more familiar”–such as in Illinois, New York, or California–evokes his critique in Obergefell that the bulk of the Justices are from the coasts.

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count).

On Monday at 9:00 a.m. I will be speaking at an event co-sponsored by the John Marshall Law School’s Federalist Society and American Constitution Society chapters. The topic will be “Which matters more to Chief Justice Roberts: The Constitution or the Supreme Court as an institution.” This is a topic I alluded to in my Weekly Standard article with Randy Barnett. It will be in Room 200. Joining me will be Prof. Steven Schwinn, and Gabe Roth of Fix the Court, who will moderate. It should be a fun event.

Later on Monday at noon, I will be attending a debate at the Northern Illinois University Federalist Society Chapter on the constitutionality of DAPA. Joining me will be Prof. Robert Jones of NIU. If you are in the area, I hope to see you there!

Prof. Gil Seinfeld (Michigan) writes at the Michigan Law Review First Impression about his experiences as one of Justice Scalia’s liberal “counter-clerks” during the OT 2002 term. In particular, he discusses his involvement in two important cases decided that term.

First, with respect to Lawrence v. Texas, he asked the Justice to be excused from any involvement in the case:

The Court decided Lawrence v. Texas that year, which raised the question of whether a Texas law criminalizing homosexual sodomy was constitutional.[35] The majority said no and, predictably, in an opinion seething with bitterness and hostility, Justice Scalia dissented.

Even before I read the Justice’s opinion, I knew I’d want no part of it. I didn’t want to help hone the Justice’s arguments or improve his prose. I didn’t even want to point out a typo or a citation error. I remember wavering between two possible courses of action. One option was to fake it. I could read the draft (or not), claim to have found no warts and to have no suggestions, and just pass it along to the next guy. The other was to ask the Justice for permission to sit this one out. I chose the latter.

I do not remember exactly what the Justice said to me when I came to him with this request, but I remember that it went well. I remember that he communicated that he understood why I wanted to opt out and that he had no problem with it. And I remember that I made it through the rest of the clerkship without a shred of concern that the Justice bore ill feelings about the whole thing.

Second, he discussed Grutter and Gratz, and how he was disappointed that Justice Scalia did not use originalism to counter the argument that during Reconstruction, Congress enacted many race-conscious laws.

It was with particular interest, then, that I considered my role as a counterclerk in connection with two of the blockbuster cases on the docket during October Term 2002: Grutter v. Bollinger[24] and Gratz v. Bollinger.[25] Those cases involved equal protection challenges to the affirmative action policies employed by the University of Michigan in connection with law school (Grutter) and undergraduate (Gratz) admissions. I tended to agree with the views of the Justice’s critics with respect to the invisibility of originalist analysis in Croson and Adarand. And it seemed to me that, if ever there was a time for a Scalia counterclerk to perform his unique duty, this was it.

If the Justice could show why the measures enacted by Reconstruction era Congresses were inapposite to the question of whether modern affirmative action policies are permissible under the Fourteenth Amendment, so be it. If there was evidence that courts were skeptical of Reconstruction era legislation that conferred benefits exclusively on blacks, fine. Or, if the Justice felt that his commitment to originalist constitutional interpretation ought to give way to other considerations, he could identify those considerations and explain his position. But if he could not do any of these things, it seemed to me, the Justice needed to be on the other side of these cases. And I told him so.

If my intervention was of any consequence, it is not reflected in the opinions in Grutter or Gratz. In the former case, Justice Scalia penned a brief dissenting opinion and joined the dissenting opinions authored by the Chief Justice and Justice Thomas; in the latter, he joined the Chief Justice’s opinion for the Court. Not one of these opinions contains even a syllable of originalist argument.

Perhaps the Justice believed that the Court abandoned originalism in connection with race and equal protection inBrown v. Board of Education, and that there could be no turning back.[26] Perhaps the Justice thought that the race-conscious measures enacted by the Reconstruction Congress were distinguishable from the sorts of affirmative action policies that came before the Court during his tenure, and that the historical record therefore did not speak clearly to the questions at hand. We do not know. His opinions shed no light on the matter. To me, at least, this is gravely disappointing, and it gives the lie to those who regard the Justice as an unfailing champion of adjudicative rectitude.

This is a position advanced by the Constitutional Accountability Center in both Fisher cases, and as far as I am concerned, there is still no originalist rebuttal to this point that I find compelling.

Justice Scalia was very fond of Italian food. Alas, over the years, his dining options decreased. His favorite restaurant, A.V. Ristorante, closed in 2007. His backup restaurant, Bebo Trattoria in Arlington also closed. He liked Tosca, but found it “a lot pricier than A.V. used to be.” Now, there will be a new choice. In honor of the late Justice’s affinity for fine, affordable Italian food, I’ve learned from some friends on the faculty that the new Antonin Scalia School of Law will have a special treat for the hungry students at the Arlington campus: Nino’s Cafe.

The bistro will serve authentic and affordable Italian fare. There will be a sit-down service for a more formal dinner, but also there will also be meals ready to-go, for students to grab before or after class. From what I hear, the restaurant will feature Justice Scalia’s favorite: thin-crust pizza with anchovies. The law school is currently applying for a liquor license in order to serve some of Justice Scalia’s favorite red wines–this will no doubt be popular with the students after a long night of classes.

If I may suggest the names for some popular dishes: Penne a la Roberts, Tony’s Spumoni, Clarence’s Cannolis, Zuppa Bader Ginsburg, Stevie’s Ziti, Alitortellini, Sotomayorzo, Elena’s Kagoregano, and Solicitor General Vermicelli.