SEMINAR: ANTONIN SCALIA JUDGE, SCHOLAR, WRITER, CONSTITUTIONALIST. Law (Spring 2018) Monday 2:00 3:50 p.m.

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1 SEMINAR: ANTONIN SCALIA JUDGE, SCHOLAR, WRITER, CONSTITUTIONALIST Law (Spring 2018) Monday 2:00 3:50 p.m. Adjunct Professor Adam J. White awhite36@gmu.edu SYLLABUS Twenty years ago, when I joined the Supreme Court, I was the only originalist among its numbers. By and large, counsel did not know that I was an originalist and indeed, probably did not know what an originalist was. In their briefs and oral arguments on constitutional issues they discussed only the most recent Supreme Court cases and policy considerations; not a word about the text was thought to mean when the people adopted it. Justice Antonin Scalia, * * * Scope and Purpose: Justice Antonin Scalia s opinions are read widely in casebooks on Constitutional Law, Administrative Law, Statutory Interpretation, and myriad other subjects. But rarely, if ever, are they collected for a more cohesive presentation spanning specific subject matters. The goal of this course is to read a selection of Scalia s writings across the usual boundary lines of individual topic, and to read them in dialogue with some of his critics both his contemporaries and his predecessors for a deeper understanding of his principles and prudential judgments. What common threads tie his work together? What fault lines can be found within it? That said, even a semester-long course on a single justice can only cover so much. Casting a wide net over subjects outlined below, this course still fails to reach Scalia s opinions and other writings on the First Amendment, Fourth Amendment, Sixth Amendment, Seventh Amendment, and other issues that he grappled with. Readings: Most of the assigned readings will be judicial opinions and articles, available on TWEN. (And assigned readings will be subject to change, as the course progresses.) But two books are assigned: 1. Antonin Scalia et al., A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1998) Page 1 of 5

2 2. Antonin Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (Christopher Scalia & Edward Whelan eds., 2017). The Scalia Speaks book is assigned for the final class, but please get started on it well before the final week. Evaluation: Classroom participation will be the basis for fifty percent of your grade. To borrow a line from Prof. Ross Davies, Let s be clear about this up front: The evaluation of participation is subjective, which means that if you do not like your participation grade there will be no basis for challenging it. Having said that, you are unlikely to get a bad participation grade if you come to class prepared to make useful contributions and do in fact make them from time to time, and respectfully listen to and comment on the contributions of others. The other fifty percent of your grade will be based on the paper that you write on the following subject: Justice Scalia s Most Significant Insight and His Most Significant Mistake. In fifteen pages, you will explore (in roughly equal measure) what you see to be Justice Scalia s most significant contribution to the law, and his most significant misstep. (As to the latter, bear in mind Scalia s observation, in the preface to Reading Law: Your judicial author knows that there are some, and fears that there may be many, opinions that he has joined or written over the past 30 years that contradict what is written here whether because of the demands of stare decisis or because wisdom has come late.... Yet the prospect of gotchas for past and future inconsistencies holds no fear. ) In writing this, you are not bound to write exclusively on the materials covered in class; you can apply what we learn in this class to cases or issues we did not specifically cover. Students will submit their tentative topics to Prof. White by March 16, with in-person meetings to follow on March (Topics can be tentative to allow for adjustment based on subsequent readings.) Drafts will be due April 16; Prof. White will send comments by April 23. Final versions are due May 4. Students Classroom Responsibilities: Given the foregoing, this course requires all students to come to class well-prepared, and to contribute meaningfully to the discussion over the course of the semester. As the syllabus should make clear, we will be reading a lot in this class. Office Hours & Communications: I ll have office hours on Mondays from 10:00 12:00 p.m., by appointment; please in advance to schedule. My office is Room 321. Page 2 of 5

3 Schedule: Subjects and Reading Assignments Introduction Jan. 22 Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev (1989); Meese, Speech Before the American Bar Association (1985); Brennan, Speech to the Text and Teaching Symposium, Georgetown University (1985); Federalist No. 78; Brutus No. 15; PGA Tour Inc. v. Martin, 532 U.S. 661 (2001). Interpreting the Law Jan. 29 Scalia et al., A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1988); Church of the Holy Trinity v. U.S., 143 U.S. 457 (1892). Feb. 5 MCI Telecom. Corp. v. AT&T Co., 512 U.S. 218 (1994); Rapanos v. U.S., 547 U.S. 715 (2006); D.C. v. Heller, 554 U.S. 570 (2008); NLRB v. Noel Canning, 134 S. Ct (2014). Feb. 12 Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849 (1989); Wilkinson, Originalism: Activism Masquerading as Restraint, in Cosmic Constitutional Theory (2012); Merrill, Bork v. Burke, 19 Harv. J. L. & Pub. Pol y 509 (1995); Federalist Nos. 37 & 78. Considering Constitutional Power and Structure Feb. 19 Morrison v. Olson, 487 U.S. 654 (1990); Clinton v. City of New York, 524 U.S. 417 (1998); Federalist Nos. 47 & 51; Scalia, The Legislative Veto: A False Remedy for System Overload, Regulation (Nov./Dec. 1979). Feb. 26 Mistretta v. U.S., 488 U.S. 361 (1994); Whitman v. Am. Trucking Ass ns, 531 U.S. 457 (2001); Scalia, A Note on the Benzene Case, Regulation (July/Aug. 1980). On Federalism Mar. 5 Printz v. United States, 521 U.S. 898 (1997); Gonzales v. Raich, 545 U.S. 1 (2005); Scalia, The Two Faces of Federalism, 6 Harv. J. L. & Pub. Pol y 19 (1982); Barnett, Scalia s Infidelity: A Critique of Faint-Hearted Originalism, 75 U. Cinn. L. Rev. 7 (2006). Mar. 12 Spring Break: no class... but plenty of time to start the Scalia Speaks book. Page 3 of 5

4 Exercising Judicial Power in our Constitutional System Mar. 19 Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk L. Rev. 881 (1983); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Hamdi v. Bush, 542 U.S. 507 (2004); Boumediene v. Bush, 553 U.S. 723 (2008); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). On the Administrative State and the Courts Mar. 26 Scalia, Judicial Deference to Administrative Interpretations of the Law, 1989 Duke L.J. 511 (1989); Christensen v. Harris County, 529 U.S. 576 (2000); City of Arlington v. FCC, 569 U.S. 290 (2013); Utility Air Regulatory Group v. EPA, 134 S. Ct (2014). Apr. 2 Scalia, Rulemaking as Politics, 34 Admin. L. Rev. xxv (1983); Scalia, Two Wrongs Make a Right, Regulation (July/Aug. 1977); Scalia, Regulation Reform The Game Has Changed, Regulation (Jan./Feb. 1981); Scalia, Back to Basics: Making Law Without Making Rules, Regulation (July/Aug. 1981); Scalia, Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court, 1978 Sup. Ct. Rev. 345 (1978). On Liberty and the Courts Apr. 9 Scalia, Is There an Unwritten Constitution?, 12 Harv. J. L. & Pub. Pol y 1 (1989); Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas, 539 U.S. 558 (2003); Obergefell v. Hodges, 135 S. Ct (2015). Apr. 16 Scalia & Epstein, Scalia v. Epstein: Two Views on Judicial Activism (1985); Scalia, Morality, Pragmatism, and the Legal Order, 9 Harv. J. L. & Pub. Pol y 123 (1986); Thomas, Toward a Plain Reading of the Constitution The Declaration of Independence in Constitutional Interpretation, 30 Howard L.J. 983 (1987); Thomas, The Higher Law Background of the Privileges or Immunities Clause of the Fourteenth Amendment, 12 Harv. J. L. & Pub. Pol y 63 (1988). On Religion More Specifically Apr. 23 Goldman v. Sec y of Defense, 739 F.2d 657 (1984); Employment Division v. Smith, 494 U.S. 872 (1990); Lamb s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Scalia, God s Justice and Ours, First Things (May 2002); Scalia, Teaching About the Law, Christian Legal Society Quarterly (Fall 1987). Page 4 of 5

5 Concluding Thoughts Apr. 30 Scalia, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (Christopher Scalia & Edward Whelan eds., 2017). Scalia, Preface, 1 J. L. & Pol. (1983); United States v. Virginia, 518 U.S. 515 (1996); Scalia, Reflections on the Future of the Legal Academy, William & Mary Law School (May 11, 2014); White, Antonin Scalia, Legal Educator, Nat l Affairs (Fall 2017). Page 5 of 5