U.S. Supreme Court Justice Antonin Scalia was polarizing in life, with his conservative views both lionized and reviled. And the response to a memorial announcement following his death this weekend was striking: It touched off a sweeping debate within Georgetown University Law School that has been both scathing and eloquent, intimate and dismissive — one that questioned not only Scalia’s legacy but whether academia had tilted so far to the left politically that norms of civil discourse had been upended.
One professor argued against the very idea of the campus community mourning the death of Scalia, one of the university’s most prominent alumni.
“I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic,” Professor Gary Peller, a graduate of Harvard Law School, wrote to the campus community.
That prompted a response from two professors who admired Scalia; they reacted with shock to the email, which they characterized as saying, “in effect, your hero was a stupid bigot and we are not sad that he is dead.”
Professors Randy Barnett, also a graduate of Harvard Law School, and Nick Rosenkranz responded with personal grief. They also wrote:
…The problem is that the center of gravity of legal academia is so far to the left edge of the political spectrum that some have lost the ability to tell the difference. Only on a faculty with just two identifiably right-of-center professors out of 125, could a professor harbor such vitriol for a conservative Justice that even Justice Ginsburg adored. Only on a faculty this unbalanced could a professor willfully or knowingly choose to “hurt … those with affection for J. Scalia,” including countless students, just days after the Justice’s death. If more of us were here, the impropriety of this act would have been far more obvious, but also less threatening to our students.
To suggest the appropriate response, each of us independently offered the following analogy: What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall — saying that he was a bigot, and his “intellectual positions were not brilliant but simplistic”? Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?
A spokesperson for the law school said it had no further comment to add beyond the emails.
The exchange began with a public statement about Scalia, who earned a bachelor’s degree in history from Georgetown in 1957, graduating summa cum laude:
February 13, 2016 — Georgetown Law mourns the loss of U.S. Supreme Court Justice Antonin Scalia (C’57), who died in Texas at the age of 79. “Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,” said Dean William M. Treanor in a statement.
“Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few Justices have had such influence on the way in which the law is understood. On a personal level, I am deeply grateful for his remarkably generous involvement with our community, including his frequent appearances in classes and his memorable lecture to our first year students this past November.”
Justice Scalia most recently visited the Law Center on November 16, when he delivered a 20-minute talk on education to the first-year class. His talk was followed by more than 30 minutes of responses to written student questions. How much influence do Scalia’s law clerks have on his opinions? “More than my colleagues,” the justice replied, to great laughter.
“The justice offered first-year students his insights and guidance, and he stayed with the students long after the lecture was over,” Treanor said. “He cared passionately about the profession, about the law and about the future, and the students who were fortunate enough to hear him will never forget the experience. We will all miss him.”
Louis Michael Seidman, a professor of constitutional law and a graduate of Harvard Law, wrote to the dean and faculty: “Our norms of civility preclude criticizing public figures immediately after their death. For now, then, all I’ll say is that I disagree with these sentiments and that expressions attributed to the ‘Georgetown Community’ in the press release issued this evening do not reflect the views of the entire community…”
On Friday morning, Seidman said that he feels it is too soon to be critical of Scalia. “Death is just this amazing, terrifying thing, that someone is here and then they’re gone. I understand the need to contemplate the awesomeness of that and to mourn. I did not and I’m not going to talk about my views of his career,” at this time, he said.
“The dean of the law school is entitled to his own opinions and entitled to express them,” he said. And academia is a place where people civilly and strongly disagree with each other and argue things out, he said. “What goes with that is on controversial questions, no one can speak for the Georgetown law center, because we think different things.
“This had some assertions about Justice Scalia, about his role in American law, about his abilities. …Because it was a statement from the institution as a whole it seemed to me pretty important to make clear it wasn’t a statement on my behalf — because I didn’t agree with it.”
Peller, whose expertise listed on the website of Georgetown law includes civil rights and discrimination and constitutional law, wrote Tuesday afternoon to the entire campus community, in part:
“I am not suggesting that J. Scalia should have been criticized on the day of his death, nor that the ‘community’ should not be thankful for his willingness to meet with our students. But he was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the ‘culture wars’ he often invoked. In my mind, he was not a giant in any good sense.
“It is tricky knowing what to say when a public figure like Scalia, or the late Robert Byrd, or other voices of intolerance, meet their death. But as an academic institution, I believe that we should be wary of contributing to the mystification of people because of the lofty official positions they achieved….”
He wrote that there are different ways of defining and understanding “community,” including the formal academic institution and the shared experience, “the ‘Georgetown Community’ that I feel a part of, a lived community of tolerance, affection, and care that so many have built for so long here. That ‘community’ would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted. That community teaches critique, not deference, and empowerment, not obsequiousness.”
On Wednesday afternoon, Treanor wrote to the campus that he knew some professors had disagreed with his statement, but that he wanted to reaffirm his belief “that this is a time for us to mourn.” He acknowledged that Scalia provoked divergent views and that the debate over his legacy would continue for many years. “But this is a moment of grief. It is a time of loss and a time when many in our community are in pain,” he said. He ended with condolences to the jurist’s family and friends.
On Wednesday night, Barnett and Rosenkranz responded with another campus-wide email. They both wrote first in deeply personal terms.
“The news of Justice Scalia’s death was a terrible blow to me,” Rosenkranz, a Yale law graduate whose expertise includes constitutional law, wrote.
“He was a hero of mine ever since law school. When I interviewed to clerk for him, I was too nervous to get the job.
“But in the following years, I had the honor of getting to know him. We had lunch together at his favorite pizza place, AV Ristorante. He spent an hour with me discussing the thesis of my first article. … I once argued before him at the Court. He cited my amicus brief in his concurrence in Bond v. United States. We once sang a song together, believe it or not: Oh, Danny Boy.
“These may sound like small moments, and they were. But I remember each of them vividly, because Justice Scalia was a hero of mine. These were some of the greatest highlights and proudest moments and happiest memories of my legal career. It is devastating to lose a loved one, but, in a way, it is just as devastating to lose a hero. I was in shock and mourning on Saturday. I suppose I still am.”
They noted that when these discussions were still internal to faculty, Peller sent a note directly to Barnett, apologizing for causing hurt when he was grieving, and that discussions continued within the faculty.
“Now, as right-leaning professors in legal academia, we have developed quite thick skin,” they wrote. “We had to. … Yet we admit that we found these emails deeply upsetting. They caught us in a moment of particular weakness and vulnerability.
“… To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead — is simply cruel beyond words. But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it.”
Then Peller sent the campus-wide email, Barnett said by phone Thursday; that was a surprise to him, after the apology.
They began to hear from students who were shocked, upset — and worried about whether they could express their opinions and reasoning freely in class and on exams.
They talked with the dean about it, and wrote: “This incident is symptomatic of a larger problem in academia: the utter lack of intellectual diversity among faculty, and the deep intolerance for views that dissent from the liberal orthodoxy. This incident can only be understood against that backdrop.
“There are some people on earth who should not be mourned when they die. Adolf Hitler was such a person. Justice Scalia was not.”
Rosenkranz argued that the incident called for a response as forceful as Yale’s president recently gave, when he wrote of the importance of ensuring that all members of the community feel welcome and included on campus.
The dean did not acknowledge that this was symptomatic of a larger problem, they wrote. “He offers neither apology nor reassurance to the hundreds of students who were deeply hurt by this incident,” they said.
To those students, they wrote: “Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.
“But make no mistake: Civil discourse at Georgetown has suffered a grievous blow. It is a time for mourning indeed.”
Seidman said Friday, “One thing about universities is they are and ought to be places where people express diverse views – so I’m delighted I have colleagues who revere Justice Scalia. I enjoy talking with them and arguing with them.
“I think one thing conservatives have mostly right is an attack on the political-correctness notion that people need to be shielded from ideas they don’t agree with. I don’t think conservative or liberal students are entitled to trigger warnings.
“They don’t need a safe space where they can lionize Justice Scalia.”
People don’t understand what academic institutions are about, Seidman said. “They’re not designed to make people comfortable, they’re not designed to reinforce the views people have, they’re designed to reinforce conflicting views. … What’s unfortunate is some conservatives forget that when they are the ones made uncomfortable by views they don’t agree with.”
Georgetown’s president, John DeGioia, declined to comment on the debate. He had sent out a statement Saturday expressing condolences to Scalia’s family and colleagues. “Justice Scalia was an extraordinary man of devout faith, whose life and career bore witness to the intellectual excellence and commitment to justice central to the Catholic and Jesuit tradition of education,” he said in that statement. “His steadfast dedication to public service through the law was exemplary and he will be deeply missed by so many here in our community and across our nation. We are proud to call him a son of Georgetown.”
Flags are flying at half-staff for Scalia on campus.
Barnett said after days of grief that he was feeling better Thursday. “I’ve received dozens and dozens of thank-yous from students and alums for what we did. I am today feeling vindicated for doing the right thing.
“Some of them talk about how marginalized they have felt in their education.” Others, he said, didn’t feel that way at all, then were shocked by the email and wondered if their perceptions had been completely wrong. “All felt they were wounded by this email and in shock and didn’t know what to do.”
Seidman, too, said the response to his objections to the dean’s statement of mourning had been very gratifying. “Literally hundreds of students and staff members have contacted me and Professor Peller to express their gratitude for what we said.”
Matthew Brown, the president of the Georgetown Federalist Society, declined to comment.
Parker Sheffy, a law student, said he was glad to read Peller’s email. “Scalia’s rulings perpetuated the disenfranchisement of historically overlooked minorities,” he said. “That would have been overlooked but for Peller.” He found it ironic that professors were writing about a minority being silenced, in that context.
“There are consequences, irrespective of the sadness of losing a human being,” Sheffy said. We can all be saddened by the passing of a human being, he said, but don’t have to agree about his jurisprudence.
He said Georgetown has a large number of conservative people, and that the concerns raised were “playing into the whole characterization of academia writ large,” rather than accurately reflecting the law school.
Matthew Blair, a second-year law student, shared a message that was sent to Peller with 59 students signing in agreement: “Thank you for giving voice to the sentiment that so many of us in the Georgetown community shared in light of the Dean’s press release. Thank you for including the students in a conversation that we were previously excluded from, and thank you for reclaiming the politics in the way our law school community remembers the legacy of Justice Scalia.”
Rob Barthelmess, who’s in his second year at Georgetown law and described himself as a libertarian, said, “What bothered me about the initial email from Professor Peller was not that he expressed an opposition to Justice Scalia’s views, but rather labelled him a bigot — effectively silencing the opinions of students that agree with Justice Scalia’s intellectual positions for fear of being ostracized. What I think this highlights is the lack of intellectual diversity in academia in general, particularly in law schools.
“We need both civil discourse and intellectual diversity. I’d say this email was violative of the former and illustrative of the lack of the latter. The remarks were not much directed at Justice Scalia’s opinions, which are fair game to criticize, but instead were labels placed on him and, by extension, anyone who might happen to agree with him.
“Regarding the issue of intellectual diversity, from what I understand, this a problem to which Georgetown is not an exception. There is a lack of conservative viewpoints on campus and I’m afraid that, as students, we miss out when an entire worldview is missing from our education. Hopefully this continues a conversation about that topic.”
Staff writers Peter Hermann and Nick Anderson contributed to this report.