Transcripts For CSPAN2 Legacy Of Justice Antonin Scalia 20170916

Court of appeals. We have a conference about one year ago in which all of the papers that were gathered together for this short publication were discussed and analyzed and we have with us today, to the participants in the conference and opposite to the essays included in this collection. Antonin scalia was an associate justice of the United States Supreme Court who wrote and signed opinions directly on fundamental elements of the american system. He was also a scholar and a leading public figure. It is appropriate that to honor this man with the selection of reflections on his impact on education. Seeing broadly is not just schools but scholarship and Public Discourse as well. In doing so, we hope to discover the, through the education and look into the fundamentals of the justices thinking if you doubt his impact on constitutional prudence, cast unseen at harvard that he was not only one of the most important justices in the nations history also among the best. And Justice Elena kagan says part of this consists in his abiding commitment of all to the rule of law. His articulation of principles communicated in the distinctive splendid pros transformed our legal culture. Despite this applause and despite nearly 30 years of service on the Supreme Court, only a few have sympathetically considered his constitutional approach to judicial interpretation. As powerful prolific writings are partly to blame. Author of several books and numerous lectures, scalia was able to defend his position so skillfully, his disciples seem to have held back. As a result, most assessments of his life and work are critical. We offer in this collection of writings, the hope that it will go some ways towards balancing the current and encourage others to add their own contributions. Although this is a sympathetic interpretation of the justices contributions, it is no eulogy. The collection includes an essay by a strong proponent of the living constitution. And others identified tensions and limitation in his thoughts. Education may be thought to be an odd entry point into his thinking but basic constitutional questions, free exercise of religion, freedom of speech, equal opportunity, due process of law federalism and the role of the expert authorized when considering the institutions that prepared the countrys next generation. To appreciate scalias constitution is necessary to place it in historical context. And so, in my opening essay, at the risk of great oversimplification, i define the history of constitutional interpretation into four broad historical periods. The first project called nacve regionalism. It lasted for more than a century. During that period, justices simply and without apology, interpreted laws as constitution or not by looking at how they compare to the document itself. But at the beginning of the 20th century and well into it, this perspective comes under increasing attack from traditional realists. They say that it is not this line of interpretation, it is nothing but a mask for capitalist dominance in american monies. And they said that instead of the justices exercising the power of judicial review, they should defer to the will of the majority. And that realist view comes to dominate court thinking during the new deal and the switch in time that this is got to be a critical moment when the court begins to back away from declaring laws of congress and state unconstitutional because they do not fit with what some think is the correct understanding of the constitution. So judicial deference to legislative majorities is the dominant view in the postwar period. Until the posted for 60s in the wake of the brown decision, the court was in the direction of interpreting the constitution as a living document. One that can change with the experiences of the American People as interpreted by the justices themselves. And so, this if thinking which reestablishes the court as a definitive interpreter of the constitution but now, the unconstrained court. One where justices can express their own perspective on the issues of the day is the one that Antonin Scalia is troubled by. And to counter that living constitution doctrine, he constructs what i would call a new rugged regionalism. One that plays close attention to the text of the constitution. And the meaning of the text as originally stood or understood by the people that read it. Not the original intentions of those who wrote it. But the meaning of the text as originally understood. And he combines that with the respect for judicial precedents and takes into account the judicial realist critique of excessive, of not accommodating to the will of the majority as expressed in legislative enactments. So this new regionalism has a ruggedness that is able to stand up to and perhaps usher into new. That will provide the court with some alternative to the living constitution doctrine that has held sway for such a sustained period of our contemporary history. That is my overarching perspective. The members of our panel today are going to elaborate their own perspectives as it applies to specific domains of this question, what is scalias constitution as it pertains to education . And i will introduce all of them now so that we can move quickly through the panel. The first speaker will be the professor of american politics at boston college. His research and writing focuses on the intersection of law and politics, he has written several books and many articles with the one that i think is most pertinent to magic today is the forthcoming book that he will be publishing early next year entitled the transformation of title ix. Regulating gender equity and education. Im sure that you will find it very pertinent to the contemporary debates over the meaning of that piece of legislation. Our second speaker will be amy a professor of law at the university of pennsylvania law school. She holds degrees from yale, harvard and columbia. She served as a on the d. C. Circuit court of appeals. That was my representative congressman live in chicago. I think he was a terrific individual at that time. I am sure that was a great opportunity for amy to hone her skills as a legal analyst. Then she worked in the office of the department of justice. And finally, we have as a commentator on the enterprise, ambassador gray who is a Founding Partner of law and Strategy Firm in washington dc. Who has for many years, focused on constitutional regulatory issues. He was the white House Counsel to president george h. W. Bush. He has served in many other positions in government and was the ambassador to the european union. , i must and that he was editorinchief of the law review at the university of North Carolina and after serving in the marine corps, he clerked for earl warren, chief justice of the United States Supreme Court and the men who had much to do with the construction of the living constitution. So it will be great to have all of these perspectives this morning. We will try to ask everybody to keep their comments limited to 15 minutes or so so that we will have time for discussion. When paul first asked me to contribute to this volume, i was a little bit amused because i thought it would be like writing a commentary on the barking of a dog that did not bark. And by that i mean that justice Antonin Scalia did write a lot about his education philosophy or his theory of law and education. So i constructed this short summary of what i thought justice Antonin Scalia would say about his news on law and education. And this is a madeup quote. I do not have much to say about law and education to the extent that have coherent views on education, the influence where i send my children to school and how i vote in the voting booth. But not much to say but what i do as a judge. Unlike state constitutions, the u. S. Constitution does not even contain the word education. Public schools are no different from any other public institution. They cannot discriminate on the basis of race, they cannot establish a religion and they cannot discriminate against religion. To be sure, many federal statutes govern educational institutions but my job as a judge is to read and apply the text of the law, not a live person views on education to come in through the back door of speculation about claims of statutory porpoise or legislative history or attempt. The method i employ interpret the constitution and federal law contains no special provision for educational institutions and they shouldnt be because i would say that i know more about education, school boards, legislators, governors and school administrators. I dont and judges should realize that they dont. Now, this is obviously quite different from many of his more liberal colleagues. It has for many liberals on the court, the job of the judge is to promote equal educational opportunity. And that is what Justice Breyer called not the words of brown but the hope and promise of brown. And in order to do that, they need the help of a lot of experts and that is what amy will be talking about Justice Scalias talking about this in a variety of contexts. And Justice Scalias view was that what this culminated in was a very simple rule. Not a broad quest for the promise and the hope of brown but the rule that our constitution is applied and racial classifications are so they should be only used in the most limited circumstances. The purpose of the courts rulings on brown and his successors is not to provide the best education but the worst possible abuses and that is the use of racial classification. During the conference, tried to provoke some controversy. He knew amy would never say anything controversial. So he tried to provoke an argument between the dean of the harvard law school, between ryan and myself in which he succeeded in doing and resulted in an article in education that i think has been handed out. And this was, i think a useful debate. Heres what jim ryans argument was. It is something you probably heard before but i think he stated this forcefully and it required some response. His argument especially about justice Antonin Scalias view about affirmative actions programs were unconstitutional. His argument, number one this view of the colorblind constitution is not in the text of the constitution. It is not an any original attempt of the founder or the framers of the 14th amendment. It disregards president s, it overturns a decision of state and local decisionmakers so to the extent that justice Antonin Scalia excessive untaken view, he is contradicting everything he claims to stand for and this is pure policymaking of the sort that justice Antonin Scalia condemned others for doing. What i would like, the way of response that. I think this goes to a fundamental part of his prudence is to understand that Justice Scalia did not claim there would be one way of determining if and what was unconstitutional. But rather there were a variety of considerations that needed to be taken to count. To some extent, it makes it hard to say that the rule of law is a law of roles because it requires some consideration but of these balancing and looking at these hard cases but what were these series of considerations . Particularly important to him . First and most important obviously was the text of the constitution. And as paul said, the original meaning. But Justice Scalia presented his us text and tradition. Which means wellestablished precedents have to be respected. This means above all, the most important is it brown versus board of education. No matter whether brown horses back board of education can be squared easily with the text in the original understanding, it is so well entrenched and deservedly well entrance. On top of this respect for elected officials. People who break the laws that we should respect their text and this is for state and local officials. Further down the list, deference to administrative agencies. If you do not believe the judges you go to other experts. Finally in general, appreciation for the limited confidence in the capacity of judges. Brown creates a hard case for a textual list. Justice scalia really did not think much about the grounding of brown. One of the coworkers, Michael Mcconnell tried to show that there was support among those people who authored and voted for the 14th amendment to prohibit use of racial classifications and segregation. That is one part. But what Justice Scalia said when he did talk about it was that there is this long tradition of understanding the constitution is colorblind. Stretching from professor mcconnell, the authors of the 14th amendment, transport to the views of the naacp to argue brown versus board of education. Often forgotten i think it is particularly important is with the Civil Rights Act of 1964 says. Clearly they say that Racial Discrimination of any sort is forbidden, even if it is used to achieve racial malice. And finally a wide variety of Court Decisions on suspect classifications. And i think behind this, lies in understanding which i clearly share about the unique evil of racial classifications. Especially in a system such as ours that relies on pluralism to govern. Now, in trying to deal with the legacy of brown, Justice Scalia tried to limit some of the expansion through the president s. Especially i just used the leading example which is a case in 1971 which dean ryan and justice by basically take the analysis and if any of you know anything about this case it is probably the most baffling, confusing selfcontradictory decision ever written by the Supreme Court. And i think that is saying a lot. Those not be applied in ordinary circumstances. We should try to revert to what he calls the ordinary methods of constitutional statutory. I thought i would mention something about another problem that Justice Scalia wrestled with and that is cases in which civil rights are established under civil rights statutes and especially under the regulations issued by administrative agencies. The thing about this has been working on title ix endlessly for the last couple of years. Some of you might know that at the beginning of the year the Supreme Court had on its docket, the gg case, about the axis of transgender students to bathrooms and the Civil Rights Department of education issued a letter basically saying that schools had to respect the gender identity of students in allowing access to gender segregated facilities and the court, Fourth Circuit and upheld that in the Supreme Court had decided to review it until the Trump Administration withdrew the letter and Supreme Courts impact for certain. Now, i must say, i would have liked to read Justice Scalias opinion in this case. It would have been an opportunity for him to write one of his most vivid and witty and memorable decisions. But he didnt get that opportunity. What i would point out is there is an irony here because im sure that Justice Scalia would not have upheld the Fourth Circuit but there are two of the most important president s that have been cited by the courts in those cases and one was Justice Scalia voted with the majority and the other he wrote the opinion and that was the. [inaudible] case. I wont go into detail but just as scalia wrote that the sweep of title ix and especially sexualharassment rules is not limited to what legislators had in mind at the time. Justice philia has a verisign been an advocate of deference to administrative agencies including their interpretation of their own regulation. This is a problem in which he tried to be loyal to legislative enactments in which he tried to recognize administrative expertise. I think it recently led to a situation where he would be appalled by the outcome in which often especially rules of affirmative action he would have to decide whether this violated the constitution and i think he would say yes in these cases. What i would like to leave the thought is that Justice Scalias understanding leads and gives us a number of different serious concerns about how we should govern ourselves but it leaves us with the difficulty of trying to bring some order to these important concerns when, as is often the case, they conflict. I think that will be probably the most important job of the people who consider themselves to be followers of justice kolea. Probably it will be the new justice of the Supreme Court and how we can square our doubts about judicial capacity and our concern for constraining the courts ability to read whatever they want into the equal protection clause in our respect for the democratic process and these things sometimes complex and that is the job that all of a space in trying to carry out his legacy. Thank you. Amy wax. Thank you for having me and im glad to be here. In the paper, the chapter in which i base this talk, i addressed the role of expertise, the use of Specialized Knowledge and methodology, and Justice Scalias opinions and especially in education decisions but others too. Here is what some of what im going to be saying or reporting about Justice Scalia and it might be with the intention of what shep has said which i think shows that Justice Scalia is not always consistent in the way that he treats expertise and here im referring specifically to his philosophy of deference to administrative agencies. I think its very important to keep in mind and i go into more detail in my chapter. What forms of expertise do i mean here . There are really two main types and those loom largely in modern context in our current political moment. The first is scientific, including social scientific that is the systematic study of social life and relations and Human Behavior using Scientific Method. This is familiar to us through the fields of psychology, economics, sociology and, of course includes research on education and the moment of socalled human capital. The second body of expertise is legal. The rule of law principle and especially the analytic methodologies which lawyers are schooled and in which they are schooled in about which they reportedly possess security scale. My paper explains that Justice Scalias expanse on general, some Legal Expertise specifically ranges from cautiously skeptical too dismissive. I seek to connect that attitude for an elements in conservative thought. It is important to note that conservatives, of course not a model list, encompassing various schools of thought are not hostile to science or specialized skills where a properly applied rather they are suspicious of what philosopher Anthony Clinton called the. [inaudible] conservativism is an electrical not just confined exertions of but also to discredit overdrawn claims of superior knowledge and insight that they believe are easily subject to abuse. In a nutshell, conservatives look at experts attempt to manage, govern and shake social life based on claims of six. Her insight into human nature and behavior and too often suppose it experts can claim no more wisdom or genuine knowledge than ordinary people. Conservative critiques of expertise are inevitably tied up with an attitude toward elites. Conservatives are anti elitist and in fact, its quite the opposite. They just have a particular conception of how elites should be selected and elevated in their proper role in society which is to sum it up simplistically and singly is they should serve mainly as a stabilizing and preservative force or as caution agents of change and should not function as meddlesome, destructive social engineers to transform existing regions in accordance with their theoretical commitment and, in many cases, their political views. What is the source of the conservative beef with expertise . Before i get to scalias opinions on this i want to elaborate a little bit. Many are wary of the ability of rationalized systems of knowledge generally and especially in the Human Sciences to fully explain and to effectively inform the management reforms in improvement of the human condition. For many the socalled improvements dont end up proving as often as not they destabilize or destroy what deserves to be preserved including longstanding traditional arrangement that cost too often impose on those least able to bear them. Here it is good to be reminded of the great 20th century social theorist, albert o hirschman, a conservative himself said that conservative arguments generally come in three varieties arguments of the facility, imposed improvement wont work from jeopardy, they will destroy some invaluable; and from perversity, whatever is proposed will have unintended or opposite consequences to those hoped for. All of these are made by conservatives and all of these claims against the pretentious application of expertise. In this phase is elaborating on a cluster of insight that stands behind the conservative skepticism. First, a robust sense of the limits of human reason in understanding. And the knowledge meant of the infirmities of human nature and the crooked timber of humanity which resist drastic manipulation and perfectionism. Hostility towards an expansive centralized Administrative State is the means for behavior institutions and into the pc toward the helm of this sprawling Administrative State of an elite managerial class, eager to push their vision of social life on unlimited Human Potential on the rest of us. A skepticism toward elites claims to operate on the basis of those objective, neutral scientifically messages independent of ideology that helps legitimate their authori authority. Finally, objections to no one and leads to disdain for traditional decentralized ad hoc informal, irrational, prejudice approaches to social life and norms, including some longstanding practices and approaches in matter of education, of character formation, of upbringing and family life. In my paper i review a sampling of prominent thinkers to put forward these views and these include frederick hayek, michael, alice mcintyre, james burnham, richard weaver, Steven Hayward and thinkers that my students have never heard of. Because time is short i will touch on one example. Alastair mcintyre in his book explains his doubts about the government in modern bureaucracy ability to manage govern in social life and is familiar with what i just said on claims of superior insight. Once again, although recognizing a role for science he denies the Scientific Method can gain insight into ordinary Human Behavior in politics and social relations even in economics due to the sheer complexity of Human Behavior and social life and its moral dimension which resists generalization and prediction and he adds that denying this unruliness leads to abuses of authority by the socalled experts under the guise of scientific impartiality. In the final part of my chapter i identify and explore Justice Scalias articulation of some of these skepticisms about expertise and not only in the treatment of social science but also invite into the important from of jurists activities to interpreting and analyzing the logs and is embodied in the process of judicious analysis and decisionmaking. In fact scalia frequently identified the findings and legal principles that purport to support judicial decisions as lacking in determinacy, partiality and the objectivity which he said is claimed for them and i think this resonates to this whole living constitution issue by lawyers and judges under the banner of their methodology will expertise and often defends customary understandings and ordinary practices against attempts to override them under the guise of the evenhanded application of legal analysis and legal principles. Finally he depicts, for better or for worse much of the federal judiciary as a likeminded elite expert class that goes into a progressive class of society and uses claims of expertise and objectivity as a cover for smuggling in their preferred policy choices. These expressions of these ideas are not hard to find in the education cases and in other areas and i have a host of examples in my chapter and certainly not exhaustive but im going to touch on two very brief here. In the education area there is scalias dissent in the case in which uphold the use of affirmative action in Law School Admissions at the university of michigan. Justice oconnor writing in support of that and states that educational administrators and professors deserve deference on their expert personal judgment that racial diversity is vital to the Law School Mission and pedagogical effectiveness and that racial preferences are absolutely necessary to deliver these benefits. In his dissent Justice Scalia issue with that in denies that University Officials deserve deference as specialized experts in doubtless. Insights into how to best educate law students and he cast dispersion on what he viewed as empirically unsupported claims that law students would benefit from this engineered diversity and become better lawyers as a result and he. [inaudible] that the supposedly lessons from diversity which he views as just basic lessons in citizenship could be effectively or most effectively transmitted at the Law School Level rather than by traditional modes of culture transmission and invocation through the family or religious institutions or civic organizations, boy scouts and other avenues and the like. In a second education case scalia cast dispersions on exercise of expertise in the context of interpreting the constitution as applies school desegregation. The Court Remanded a longstanding desegregation order to determine if the school issue should be released accord to provision. On issue the key issue in the case was how much remaining actual segregation in the district was traceable to past legal segregation and therefore remains to be legally corrected and how much was not. Scalias concurrence is specifically addressed this offers a general critique of the courts empirical methodology in desegregation cases. He observed that the court has never developed a reliable and precise formula for determining whether the end balance of didnt assignment can be traced to past official action as opposed to quote attributable to private demographic shifts. He expresses doubt that the judges are quick to make these highly determinations especially as official segregation proceeds to the past. The consequences of the failure and rhetoric accompanying it suggest that its an arbitrary extortion of power to bring about the results as best for society. Because their analysis is show shaky he says, the courts decision is to uncover for the judges preferred outcome which is more court order supervision, more Court Ordered integration. Now, in closing i wanted to say that as noted, one theme in tiny these together and one found frequently in his opinion is that lawyer and judges indeterminate open ended message often under the guise of attention of determinate message leaves room for results oriented judging. Of course this assertion raises a host of methodological questions and serious questions, i think. Is there a more determinative impartial alternative or for judicial decisionmaking that would eliminate or reduce this problem. Obviously scalia had something to say about that and hes worked on a ritualism, for example many have questioned his analysis. So i leave you with a very hard problem. Exactly how should judging a legal analysis be reformed to avoid and solve this problem and is this even possible. Or is the reign of illegal eli elite, government, society generally biases and preferences and they are leanings and inevitable future of our political system which must to that extent be partisan. Is there some way to reduce their influence and would we really want to . Does what does it mean for our political presence and our future . Those other questions that i leave you with. Thank you. Thank you. Ambassador gray, you have a chance to illuminate the manuscript, as a whole. We look forward to your commen comments. This might be a wee bit provocative one might say but not too provocative. I read two points to make. One is which i will raise second which is it is surprising to me that there is no citation in this book, no discussion in these papers of what i consider to be the second most Important School segregation case or education case which is totally ignored in that case is griggs. Thomas was asked in his hearings what were the two most important decisions decided during his Law School Career and i think he may have misunderstood and thought it was in he was in law school but his answer wouldve been right either way and his answer was roe v wade and griggs. He was excoriated for referring to this obscure case called griggs. I had a reverse done to figure out what were the two top topics of questions directed to him by the democrats during the hearings and guess what is what the answer was roe v wade and griggs. Griggs is an important case. Griggs, in my view and ill get to the cinnamon and essentially overruled brown. That provocative enough, paul . Ass on the question of expertise, i think that in the Administrative State and is going to be telling us what to do and i think that is now undergoing a lot of change in format in the courts and i think that was a big part of the nomination of justice or such and he had written probably more than any other about the question of and the question of unbounded discretion of giving the courts too much leeway of making it too easy for the agencies to make it up and utilize their expertise. I think Justice Thomas thanks that there is no authority at all to make up rules and he tells the story of one session, i guess, involves the Supreme Court argument involving chevron and one the weight thomas tells it is Justice Scalia leans over to him and says you know that decision that may have been the worst decision ever rendered by this report and Justice Thomas says you know, i have a feel for that. You wrote it. [laughter] so, i think he was changing his mind not in delegation was coming back and he had written earlier opinion in 2000 saying that if there is an issue of non delegation that is overbroad, over big delegation from congress which provides no guidance the agency or the courts to judge and then its the courts job to interpret what the statutes is supposed to mean, not the agency so, since the two are so connected there is one great big exception to chevron which has been ignored. Towards the end, there was one case involving co2 Climate Change and i dont know what the name of the case is locally but has to do with changing the threshold to make the statutory theme easier to implement and the epa says well, 250 really means 100,000 to us and thats where we will start at 100,000. And will try to work our way down to 250 but will started hundred thousand and that was too much for scalia who had one of his great line, i think when he said i cannot sit idly by and waved as it embarks on his voyage of discovery. I think that he was beginning to question these delegations of authority or assertions abroad delegation and the discovery of ambiguity everywhere and i think we will see much more about this under the next Supreme Court. With course which now there. The other issue i wanted to discuss is griggs. Griggs said that it was an impact case were all this would impact issues come from and griggs said that you couldnt use a college or high school, excuse me, High School Diploma as a screening method for hiring because blacks graduated so much lower levels that they got diplomas and a much slower rate that you would automatically have discrimination. Theyre in sued a dozen cases and many rules out of the eeoc all very confusing and all very difficult to follow and all very troublesome about what really was and what is impact and how much should be attributed to in fact and the way it was administered by the eeoc was through a practice called. [inaudible] where you to each of the group, hispanic and black, caucasian, asian american, whatever and you rank them inside their own silos and then you pick your admission, if you will, the top 10 of each group and that is how you get a perfect reflection of the population in the marketplace. When the 1991 Civil Rights Acts came along to try to overrule the Supreme Court case that really cut back on griggs the Congress Also outlawed this practice of race norming and it comes to a head this whole question comes to a head in the case which is done in attention with richie verse stefan know which is the new england firefighters case just two years ago. And whether they, the New Haven Fire Department could use teaching materials developed by suppose it independent test producer to be used for both written and oral application in the ranking of africans for the job in the Supreme Court had a very lengthy opinion about as long as they get. They say, well, the statutes requires both applications that it would impact and disparate treatment and scalia raise the question and the question with the majority opinion well, if you are trying to correct disparate impact you have to use disparate treatment and how can you reconcile those two. The court manages to do it with some great gymnastics and i had to read a gymnastics three times over the last few days to understand the virtuosity of kennedys opinion but scalia doesnt really let him off the hook and he says this is where he up on the whole question of what and how it is to be applied, not just in the context of School Busing or even Higher Education admission but the use of education broadly as a method for screening for job job opportunity. For example, i think of germanys practice of having employers and local areas take over completely, not completely but almost take over the instruction of what should be instruction at the local Community College or high school. They tell the teachers they are what they need to have and i can assure you that when they higher pay higher by performance, by how well the student has performed in terms of the learning of the curriculum that they have devised. You cannot, at least until the richie case came out, you cannot if you are an employer, not the law school, we lawyers get exempt but military as well. Military is exempt. But if youre a general employer you could not ask but you couldnt ask for transcript of the student in the high school but you couldnt even ask for evidence of diploma. That is pretty rugged. The Us Government does get a pass on that and so the army and the navy and marine corps in the air force and was not have all used a graduate level diploma equivalent is a screen for for admission, if you will for recruitment and its an interesting to see that minorities and up in a much higher percentage in the military and they do for the working population at large and for their own percentage of the population at large. Since my time is up, i will just simply quote from school he is and this is a very short possibly short opinion is one of the shortest he ever wrote. , four pages. Easily in the course resolution of these cases makes it unnecessary to resolve these matters today. That is, how do you reconcile disparate treatment with disparate impact. But the war between disparate will be waged sooner or later and just begin thinking about how and on what terms to make peace between and i dont think we really come to grips with this yet and i dont know what cases are getting up there to come to grips with this and that richie which i pronounces to rest many of the questions people had their were bouncing on the court between the time of griggs and the time that the Supreme Court case cut back on griggs was decided and when the Civil Rights Acts came up in response. It lays to rest much of this but the whole question of quotas and whatnot is still ultimately resolved and i think, i know from reading his concurrent here and some of the other opinions have been referred to and quoted from that i think were scalia were to come out would have been colorblind and you cant use disparate treatment to correct impact that was violating equal protection and i think thats what his view would be and we dont really know for sure but i think that is the burning question that is not yet been resolved. Thank you. I think we should give shep a chance to comment to the griggs case. Sure. Couple of points about griggs and i think it fits into what i was saying about growing conflict between just a school he is willing willingness to defer to the judgment of congress and state legislators on one hand and the equal protection clause on the other which most of you probably know but the griggs case was written by chief Justice Burger and part of the background there was that duke power was a bad actor and they didnt come up with clean hands. They were suspect but one of the things to remember is it was a statutory case and most of these issues are statutory cases. Most of these disparate impact cases were under title vi of the Civil Rights Act and when the Supreme Court did start cutting back on griggs in the mid to late 1990s ambassador great will remember this well since he was right in the middle of the congressional bites about this but once the court cut back then Congress Said no we like the system that we had before and they came to defense of the previous what i would say is quite, the courts rewriting of the civil act. They overturned the race norming to practices where it came to the burden of proof in disparate impact basically the Congress Said we want to go back to the griggs at all standard in that left Justice Scalia with do i defer to what congress has said or do i overturn that with my understanding of the equal protection clause. So, that was, i think, one of the central dilemmas that justices are going to be facing over the next coming years. Amy. Yeah, disparate impact, ive written two big articles one in the National Affairs journal of opinion and one for a lot review. I know the case very well. I would just make a couple of comments about it in person, i commend you for bringing up that case, youre right, its very important episode in understanding Justice Scalias thinking about these matters and a very important case. First of all, in griggs, the court did not say that using the educational credentials screening devices was absolutely prohibited. They said it was the use of could be justified by the employer, by showing business necessity in a course that is a very manipulable standard and a very hard a standard to meet. The second point is that disparate impact device which, i think its fair to say, Justice Scalia has had some real issues with as noted by his richie decision which has spread to other areas so it has been extended to housing under the fair housing act, any practice, local zoning or other policy that has a disparate impact on minorities and it is suspected now and its been extended to School Discipline through colleague letters and rulemaking by the department of education and its a disciplinary practice in Public Schools has a disparate impact and minority students and it is suspect. We do have the proliferation of these policies and i think this bears contemplation if scalia was with us today, i do wonder whether he would redouble his critique and remind us that in fact, to implement these policies we do need to be race conscious in ways that might run afoul of the constitution. I want to comment on the other topic that gray brought up and that is scalias thinking on delegation of congress to agencies. I think it is important to understand that scalia was originally very concerned about congressional committees writing their preferences into law by writing a fairly vague statute and then having Committee Hearings and Committee Reports that went into much more detail and were written by advocates or some noble cause or another and then the courts would come along and they would use these Committee Reports as the text to interpret the statute even when the imitative agency didnt interpret the statute in that way. He was inclined to say okay, lets go with the text of the statute and then if youre going to have interpretations of the statute, the have the Administrative Agency count and not some Committee Reports that the whole Congress Never saw or never considered. So, i think, the issue involved and becomes a situation where that is no longer the problem. A new problem arises but some of the language that he has used to address the initial problem gets in the way of solving the new problem and so on. Ambassador, what is your reaction to those comments . This could get into a Law School Class debate with our first speaker. I dont think i was involved in you have to take that into account. I dont think what the court and what the congress did was reversed. [inaudible] and go back to griggs. The minority opinion in ricky try to say that is what they did but there were a lot of terms that were used in these cases in the manifest relationship and what do they mean but manifest relationship was not introduced and the way it was solved in the way it was resolved in the back rooms just before it went to the floor in 1991 whenever it was was to use the business necessity language that came that was adopted with americans of disability act which is not a bill and was never been thought to be come close to a bill or disparate impact let alone a disparate treatment bill and the language from the ada does not revert back to griggs and it its the reverse. We can get an argument about this but all i can say is ginsberg in her dissent pretty strong dissent and it goes on forever, its like the majority opinion and tries to stipend access is the support for her decision but lost title iv. So, i dont know. On the question of deference it is true that justice coolio did not like Committee Reports and did not like for statements because they were written by people like me and asserted by the reporter as actually having been delivered on the floor when the speaker probably was in timbuktu. He was right to be skeptical of all of that and knew about that. People did, in those days, really care in the early days my start practicing law, people really did care about the actual language of what was being worked out in subcommittee. We forget the four statement, but they were food fights and parliamentarians were called in to rule on the ability of this amendment or that amendment and how many people have heard about an amendment to the third degree . [laughter] one and goes up. God, you couldnt get through it, it was actually great theater to go to a markup session and watch the food being fought over whether or not an amendment could be used to amend an amendment that was being used to amend an amendment used to amend the statute or whatever. People really, really iran every single word of the text and i can assure you, with my experience, john dingell never would have given any discretion to epa that if he could possibly of whatever he gave epa the number they had to use and it wasnt in your expertise dreamed up a grant. Mile but thats what it is and live with it. I will finish this. [laughter] so, i do think congress started getting away from the three Day Work Week and the markup sessions and then Campaign Finance laws and they spent most of their time across the street raising money and every single Campaign Finance improvement has worsened my Balance Sheet of 30 years ago there was a limit and a cap of 30000 and i could say i was maxed out but now you cant say your maxed out. There is no limit to how much i can give, so much for reform. I think it is time for us to open up the audience you want one more response. One quick thing about the Civil Rights Act of 1991. Im actually not going to do and vassar gray was in the back rooms but one of the interesting things that links the question of legislative history to that act was incorrect me if i get the details wrong but the meaning of the act was so unclear that everyone was trying to get in their understanding of the history and senator danforth got often said one thing we agreed on is that there will be no legislative history and thats weve all agreed that we wont engage in this game and senator kennedy said what senator danforth meant by that was x, y and z. One of the justice coolios greatest accomplishments was to reduce significantly the frequency that the court looked at this and it was a famous incident on the floor of the house where someone tries to say did we just get this through legislative history rather than the statutes and bonnie said i will answer them into words, antonine scalia. I say one thing about this . My students i teach and i am struck by my students very crude ideas about Justice Scalia that he is some kind of demonic figure that stands for old wrong things but what i do say to them is scalia has been a very salutary influence in disciplining judges to look at the actual wording of the statutes and carefully consider them. He sort of sternly stood over them and insisted that they do that and i think the propensity to do that that you go back to older cases and was severely lacking. Students see that trajectory to that more discipline and attention to the actual wording of legislative enactments and that is partly school he is doing. Okay. I am sure that this conversation has stimulated thoughts in the audience. Yes weight, now, were hopefully going to give you a working mike. A few weeks ago a group of asianamerican students sued Harvard University Admission Procedure for discriminating against and one of the statistics they used was the enormous spread between asianamerican sats for acceptance in students and harvard and black sats and i have a personal and i but greed to interview applicants this coming fall and if i have enough asianamerican students i hope that the panel will give guidance as to what im supposed to tell them about harvards admission policies. Can i Say Something . I just heard an article about this and is called are not dreaming of affirmative action. Its a couple years old but i think one important point that cannot be forgotten is that private institutions can do pretty much what they want. Now there is title vi and there are legislative limits but affirmative action is not been litigated on that basis and its been litigated by the constitutional principle and all the big cases have involved public universities. That is important thing to remember. For better or for worse, harvard has pretty much a freehand in discriminating against who they want to or whatever standard they want to use for admissions. Now, as i tell my children, the fact that you have a right to do something doesnt make it the right thing to do. So, i think the discussion needs to take place on the plane not of what is legally permissible, although, once again, under statutory materials that might be debatable what should harvard be doing . How should they be choosing elites . This is a longstanding issue and it is not an easy one. I would say that to them. Guess, unfortunately, harvard has the great honor of being referred to in the baci case as doing the right thing and they had a diversity policy and i think amy is right that they were irrelevant in the case because they were a private institution or whatever they were doing was their business and what is appropriate for consideration but mr. Powell found that as a way to solve a problem that he had. Any others yes, in the back. Mark wallace, i cover the Supreme Court for education leak and other publications. I had a question that like ambassador gray i looked at the essays and i looked at in vain unless i missed it for a discussion on a provocative issue that justice coolio wrote about in one case, a case about visitation rights and often spoke about the speeches and that it was his beliefs that there was no fundamental rights or no substantive Due Process Rights for parents to direct the upbringing of their children which includes education and that goes back to cases of the 1920s but i was going to read from the georgetown law and im not checking my email here but the opinion gets a little more clear but he said it is such a parental right that is simply not in the constitution. I will not enforce it from the bench. I just wonder if you might be able to comment on that since i didnt see it in the essays at all. Yeah, shep. Ill take the first crack of this. One of the big disputes with conservative jurisprudence is whether there are rights that are not enumerated but should be respected and there are honestly the big difference between Justice Thomas who says we need to look at the declaration of independence and that says there are natural rights that might not be listed explicitly in the constitution and that would seem to be a good candidate for these natural rights. Justice scalia was obviously extremely reluctant to do that. He wanted to look at the constitution and not talk about the spirit of the constitution or the driving force behind the constitution. I think in the long run that position, which in some ways, becomes more positive his stick is not probably going to fail. But, on the other hand, i have to say i have significant respect for Justice Scalias skepticism and i think this goes to amys point about skepticism of experts that judges on the Supreme Court are particularly adept at identifying what those fundamental rights are. I think that is a wonderful case to bring up because it really focuses us on this debate about substantive due process where scalia really is averse to the recognition of any unenumerated rights in the constitution but what it also shows is this issue of the right to grandparents versus that subsistence due process or rather a repudiation of it cuts both ways and sometimes its refusing to recognize these natural rights that are incorporated into the constitution and very difficult issue that sometimes it gives the legislator freehand to do things which traditionalist anna conservative really would dislike. I give grandparents visitation rights and derogation of parental authority. I think thats clear it would sometimes bite the bullet on that stuff. Yes, sir. My question stems from the last exchange of from some earlier comments that professor mehlman made. He said its fair to say that Justice Scalia would have voted to uphold brown if anyone had ever challenged it. But there was a companion case to brown, bowling versus sharp and that question involves whether the federal government, as to which the protection clause does not apply should be subject to the same limitations that the court was adopting in brown, and Supreme Court said yes. So, if that issue came up before Justice Scalia, what you think his response would have been then . Would have been then or would have been 2030 years later . I think Justice Scalia would have said what we apply to the state we should apply to the federal government. Yes, the argument that somehow due process means the same thing as equal protection is a pretty hard logical case to make but, i guess, i would make this general point that being a judge requires statesmanship, not simply logic. We see that best in chief justice marshall. This has become such an embedded part of our political understanding and for extremely good reason. There is no reason to look back at that and reconsider it but better to say what how should we interpret the basic commitment to racially quality as expressed in the view of which is that racial classifications are inherently suspect and that should apply to the federal government, as well as the state. Yes, maam. Having shared an independent regulatory agency, i can speak to the point of using Committee Language which often we would have commissioners determine the outcome of the case based on the Committee Language and we would often argue of whether or not we should use that language or refer to that language to find an appropriate outcome. So there it is, and it would go to the courts and the court say and consistently, can use it and then they would say no you cant use it and thats all i have to say. [laughter] for dealing with the problem right now because now we have major legislation without Committee Reports. I was going to say that scalia has clearly had an effect. Theres less citation to Committee Reports and theres fewer Committee Reports and whether that is a better circumstance that is left for us to judge because the fact is the court still have to interpret the language of these statutes and they still have to figure out what they mean and scalia, at times, oversupplied that task. There is ambiguity when push comes to shove he is willing to admit that. So, sometimes there is no clear, single meeting. I wanted to follow up on a comment, i recently, coincidentally read an article by former judge Mike Oconnell who was a litigant of the losing side of the city of boerne case and he was questioning how the spring court was taking a two broad look at their role in interpreting the 14th amendment because the 14th amendment specifically said Congress Shall have the right to enforce this and mr. Oconnell went into detail as to how it was argued in this is in the specter of dred scott decision that congress specifically did not want the court to get involved in and clean that and he felt the city of boerne was an effort by the court, notwithstanding the clear understanding of congress when they passed 14 commitment not to be so heavily involved in interpreting having a role in how congress utilized that power. I wanted to ask if theres any comments on that. I will take a first take at this. Actually, in my class two days ago, i was requiring my students read the 13th and 14 and 15th amendment and noticed that there is that final section that Congress Shall have power to enforce this. Most people dont realize but then what happens when the courts interpretation conflicts with congress interpretation as culminating in the city of boerne and what i would say is as frequently is the case in american politics, the separation of powers about the court versus Congress Gets intertwined and very complicated way with federalism. To what extent can Congress Force things on the state so i think thats part of what through the balance in that case was the courts relatively inconsistent effort to try to revitalize federalism. Professor oconnell is such an expert at this and i cant go too much beyond that although i think i probably disagree with him about my view of accommodations but i will leave it at that. Gray, deer, and that the smart. I dont have much to say but i think this is a really hard issue, these border skirmishes and especially in light of the expressed language here of the power to enforce. These issues have been ongoing for ever and they are very up to on some level and i dont know, i dont know the jurisprudence in the sense of what scalia would say about it or whether he has fully developed a theory about it but all he would say is i consider this issue very hard. Any other questions, if not, there the panelists have some final observations that they want to make . If not, thank you all for coming. Please feel free to purchase scalias constitution essays in law and education. Mcmillan just published this book and also join us for lunch, which is available to everyone before you leave. Thank you very much. [applause] [inaudible conversations] washi. You can watch live coverage at 7 00 p. M. Eastern time on csp cspan. The new Supreme Court term begins october 2nd, at a formosa by the american constitution society, legal scholars looked at some of the cases of under consideration dealing with voter rights, gerrymandering, and president trumps travel man. 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