Seth P. Waxman was U.S. solicitor general from 1997 to 2001. Theodore B. Olson was U.S. solicitor general from 2001 to 2004.
As former solicitors general for Presidents Bill Clinton and George W. Bush, respectively, we each argued our fair share of cases before the late Supreme Court justice Antonin Scalia. While the two of us often disagree, we are united in our respect for Scalia, a man who cared deeply about the law and who always sought to promote open, vigorous, diverse and respectful debate. So we were pleased when George Mason University announced its intention to name its law school in his memory.
Aspiring lawyers will encounter Scalia’s ideas for generations to come, determining for themselves whether to accept or reject his principles, theories and opinions. Whatever they decide, they will owe him a great debt for enriching the conversation on the Constitution and our legal system. It is fitting that a man who so profoundly influenced the law itself as well as its study should be recognized in this way for his achievements.
We acknowledge recent votes by the university’s Faculty Senate criticizing the proposed renaming because Scalia “made numerous public offensive comments” and “was a significant contributor to the polarized climate in this country,” which might prevent the university from being “a comfortable home for individuals with a variety of viewpoints.” We see things differently.
While many of the opinions that Scalia wrote and some of his oral comments were undeniably controversial, it is in the nature of the Supreme Court to take up matters that stir strong opinions and disagreement. George Mason would not be naming the law school after him to signal agreement with his every word or opinion, but rather as a sign of the outsize influence he had on legal scholarship and constitutional interpretation. Many of his peers on the Supreme Court — including some of his most frequent opponents — and legal scholars across the political spectrum have attested to the impact Scalia had on U.S. jurisprudence during his distinguished career.
Scalia’s pen could be acerbic, but he understood and respected the difference between intellectual battle and personal vilification. “I attack ideas, I don’t attack people,” Scalia often said, and he consistently modeled this during his 30 years on the court. Any lawyer who faced him could be certain to be treated fairly, even though Scalia might well have subjected the proffered arguments to withering criticism. Each of us witnessed this firsthand, over and over. Whenever we argued a case in front of him, he treated us with dignity and respect, whether or not he agreed with our positions.
Fellow justices also have attested to Scalia’s capacity for friendship, even though they differed with him, sometimes vociferously, in critical cases. Former justice John Paul Stevens called him a “good friend” who “earned the respect of all his colleagues.” Justice Clarence Thomas mourned that it would be “hard to imagine the Court without my friend.” Perhaps most poignantly, Justice Ruth Bader Ginsburg, his fellow opera devotee, acknowledged her “good fortune to have known him as a working colleague and treasured friend.”
Scalia’s jurisprudence will be debated for years to come. Yet few can doubt that he has had a profound effect on American constitutional law and legal advocacy. Scalia’s particular interest in promoting First Amendment principles, especially in university settings, makes George Mason’s proposal especially fitting.