Tuesday, September 27, 2011

Justice Scalia: Duquesne should strive to retain Catholic identity

Sunday, September 25, 2011

He is one of the most outspoken, influential and controversial justices in the recent history of the Supreme Court, and on Monday, Antonin Scalia marks his 25th anniversary on the nation's highest court.

He came to Duquesne University Law School on Saturday and challenged its officials to preserve the school's Catholic identity in a speech commemorating the school's centennial.

Scalia's 20-minute address to about 1,200 people in the A.J. Palumbo Center, Uptown, included a defense of religion in the public life and of an approach to constitutional law that he helped pull into the mainstream of legal thought.

"Our educational establishment these days, while so tolerant of and even insistent upon diversity in all other aspects of life seems bent on eliminating diversity of moral judgment -- particularly moral judgment based on religious views," Scalia said.

As examples, he cited attempts to sue a religious university in Washington, D.C., for offering only same-sex dorms and other attempts by a law school association to bar schools that discriminate against homosexuals.

"I hope this place will not yield -- as some Catholic institutions have -- to this politically correct insistence upon suppression of moral judgment, to this distorted view of what diversity in America means," Scalia said.

Scalia's interpretation of the Constitution, which holds that the meaning of the document's words doesn't change over time, has shifted the country's legal landscape during his quarter-century on the court. During a panel discussion after his speech, he defended that approach against those who say his approach is too ideological or rigid.

"The Constitution is not an empty bottle. It says some things and doesn't say others. ... What is a moderate interpretation of the Constitution? Halfway between what it really says and what you want it to say?" Scalia said.

Scalia has been the court's most forceful and outspoken advocate of this philosophy, called orginalism.

"He has an approach to constitutional interpretation that was fairly unorthodox when he came on the court, and is now central for a significant segment of the legal community," said Arthur Hellman, law professor at the University of Pittsburgh School of Law.

Hellman said Scalia applies the Constitution based on "the words (the framers) used and what they meant at the time" rather than as a "living Constitution."

It can lead to seemingly contradictory opinions, Hellman said. Scalia has supported religious advocates in saying tax dollars can go to parochial schools, but ruled against religious interests in cases where they seek to be exempt from a law because of religious beliefs.

"The common thread is that, in both instances, he's willing to leave it -- and thinks the Constitution leaves it -- to the people," Hellman said.

Scalia said he's "sometimes embarrassed" when abortion opponents thank him for being an advocate for their cause because he often sides in legal decisions with their attempts to limit access to abortion.

"I'm embarrassed because, of course, I did not champion their cause," Scalia said. "I would no more hold that the Constitution requires abortion to be prohibited than I would hold that it forbids abortion to be prohibited. In my honest reading of the constitutional text, it addresses the subject not at all, which means it is left for the people of the states."

But his biting, sometimes acerbic opinions and public comments spark controversy. He once told someone who asked about his ruling in Bush v. Gore, which handed President George W. Bush the presidency, to "get over it." He has ignored calls to recuse himself from some cases after saying and doing things that some said caused a conflict of interest.

"He's a very combative writer, and I have always wondered if he is as effective a justice as he could be because of that," Hellman said. "The sharpness of his anger and the combativeness of his personality may have diminished his influence on the court."

U.S. District Court Judge Arthur Schwab, of the Western District of Pennsylvania, said he saw a different side of Scalia when he took a first-year contract law class that Scalia taught at the University of Virginia.

"Although he was the smartest person in the room, there was nothing intimidating about his manner of teaching," Schwab said.

Scalia hosted regular dinners at his home for small groups of his students and their spouses. Schwab came to the school from Grove City College and said Scalia helped him move past the early intimidation of being surrounded by graduates of Harvard and Princeton. "He gave me a great deal of encouragement that I could do the work."

Duquesne celebrates its 100th anniversary today. In addition to his 20-minute address, Scalia attended a lunch with federal judges, faculty and student leaders, as well as a black-tie fundraiser for the alumni association, and received the Carol Los Mansmann Award, given in memory of the first woman appointed to the Third Circuit District Court, who was also a law professor at Duquesne.

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