George Mason University leaders’ announcement last week that it had received $30 million in gifts and would name its law school after U.S. Supreme Court Justice Antonin Scalia provoked immediate strong reactions.
Two colleagues at Georgetown University Law Center found agreement in the choice of Scalia’s name for the school.
Neal Katyal is the Paul and Patricia Saunders professor of national security law, who, as acting solicitor general for the U.S., argued several major cases in the Supreme Court, including the successful defense of former attorney general John D. Ashcroft for alleged abuses during the war on terrorism. He clerked for Supreme Court Justice Stephen G. Breyer, and he is a graduate of Dartmouth College and Yale Law School.
Viet Dinh is a professorial lecturer in law and distinguished lecturer in government at Georgetown University, where he specializes in corporations and constitutional law. As a U.S. assistant attorney general for legal policy from 2001 to 2003, he played a key role in developing legal policy initiatives to combat terrorism, including the USA Patriot Act. Dinh clerked for U.S. Supreme Court Justice Sandra Day O’Connor. He graduated magna cum laude from Harvard College and Harvard Law School, and he is the founding partner of Bancroft PLLC.
Here, they argue that Scalia’s legacy isn’t easily labeled. — Susan Svrluga
By Neal Katyal and Viet Dinh
Even in his passing, Justice Scalia has prompted heated debates about the meaning of his life and occasioned a separation-of-powers lesson on the appointment of his successor. Justice Scalia is not one to let death stop him from doing his work. And so it is fitting that George Mason University honored him by renaming its law school the Antonin Scalia School of Law.Almost two decades ago, our Georgetown law students told us something remarkable about each other: Despite the fact we had worked for different administrations and parties, we had each told our respective constitutional law classes that the greatest 20th-century Supreme Court opinion was written by Justice Scalia.The stakes in that case were massive — the constitutionality of the Independent Counsel Act (the law that gave Ken Starr and Lawrence Walsh their powers).And Justice Scalia dissented.Alone.In powerful language, he predicted the horrors that the act eventually would unleash and extolled the wisdom of the Founders, who avoided setting up an unaccountable fourth branch of government.That is why we applaud George Mason’s decision. Forget about the contributions and scholarships; they are great but beside the point. For us as law professors, to name a school after a justice who embraced the law in full as Justice Scalia did makes great sense, just as it has for Thurgood Marshall, Sandra Day O’Connor and Benjamin Cardozo.Those who would criticize the renaming, arguing that Justice Scalia is an arch-conservative not worthy of the honor, only betray their own limitations or prejudices. Easy labels often obscure a more subtle reality and discourage deeper thinking.It was Justice Scalia, proponent of executive authority, who dissented from the post-9/11 executive detention of enemy combatants, arguing that only criminal charges can justify imprisonment.Justice Scalia described himself as “a law-and-order guy,” but his politics didn’t dictate the results in the criminal law cases he heard.For example, Justice Scalia authored the landmark opinion in Blakely v. Washington striking down state sentencing guidelines that empowered judges to increase defendants’ sentences based on factual findings not proved by a jury; his opinion in United States v. Booker extended Blakely’s holding to the federal sentencing scheme.And Justice Scalia was often quick to invoke the rule of lenity, a traditional canon that courts should resolve ambiguities in criminal statutes in favor of the defendant.Justice Scalia’s jurisprudence was not blind to the realities of modern life, especially on Fourth Amendment issues. Relying on traditional trespass theory, Justice Scalia’s opinion in Kyllo v. United States invalidated the use of thermal imaging technology on a man’s home to see if he was growing marijuana. He wrote that the Fourth Amendment barred warrantless GPS tracking of vehicles — and warrantless DNA collection: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for oral inspection.”It was not his bottom-line votes but his methodology and reverence for the nation’s founding ideals that made Justice Scalia so special. His Independent Counsel Act opinion traced the roots of our “government of laws and not of men” to the Massachusetts Constitution of 1780 and explained how that document became the precursor to our Constitution’s separation of government powers.Instead of blithely quoting this trope about the rule of law, Justice Scalia went to the source and discovered deep and apt meaning. While his colleagues remembered the recent history of Watergate, Justice Scalia evoked our nation’s older traditions.At the time, he couldn’t get a single colleague to agree with him. But the nation ultimately did, and the act faded into oblivion in 1999.Both of us had the privilege of arguing in court before Justice Scalia, and it calls to mind a spirited thesis defense or the best law faculty discussion of an academic paper. He was brilliant, hard-hitting and loquacious. If you listen to any Supreme Court oral argument online, you’ll see how much he changed the game with his arrival on the court in 1986.Advocates now have to come ready for intense intellectual combat, not the delivery of a prepared text.Justice Scalia was particularly generous with his time giving law school lectures; he would arrive early to visit a class and stay late to answer students’ questions.Some have criticized Justice Scalia as a polarizing jurist, one who lost opportunities to compromise and fashion consensus opinions. But that critique fails to recognize that Justice Scalia was always playing the long game.The ultimate conversion of his lone dissent on the Independent Counsel Act into a consensus view is but one case in point. He wrote opinions designed to endure and be read in law schools for decades.We think Justice Ginsburg said it best, “It is a tribute altogether fitting that George Mason University’s law school will bear his name” for he was a “grand master in life and law.”