The question I asked Justice Scalia

When I was an undergrad, I took a Constitutional Interpretation class taught by Walter Murphy. For a guest lecture, Professor Murphy brought in Associate Justice Antonin Scalia, who had only joined the Supreme Court a couple of years earlier, to talk about originalism, his legal theory. Being taught by a Supreme Court Justice was, of course, a special occasion. Even more so by virtue of it being Scalia, who was already famous (or infamous) and controversial. And, to top it off, Justice Scalia would take questions from the class after his lecture.

To a liberal like me, the opportunity to ask Scalia a question was too good to pass up. And I knew exactly what I wanted to ask about. I spent a little time doing research so I could formulate the question well. In the end, I asked something like “The Constitution never mentions corporations or talks about giving the rights of persons to non-persons. Yet, the court ruled in Santa Clara County v. Southern Pacific Railroad Co. (1886) that corporations have the rights of persons. Doesn’t this go against the original meaning of the text?”

The Justice’s response was terse. I can’t claim to remember the exact wording, but it’s stuck with me as “That’s settled law. Move on.”

While I thought the “settled law” response was a little arbitrary, in a nation that values stare decisis and precedents, it makes sense. The question, of course, is how you decide that something is “settled law” and, therefore, should not be tampered with; or, in contrast, that a precedent so violates the original meaning of the Constitution that it must be overturned.

And there, lies, for me, Scalia’s hypocrisy. Where was the reverence for settled law in Heller or Citizens United? And why the respect for precedent in Obergefell v. Hodges?

In the end, I’m sure that Antonin Scalia – who criticized the opinion in Atkins v. Virgina for “rest[ing] so obviously upon nothing but the personal views of its members” – believed that he kept his political and legal beliefs separate. But the conclusions he reached about whether precedents were “settled law” or not appeared to coincide quite closely with his political views.