Skip to main content

tv   Legacy of Justice Antonin Scalia  CSPAN  September 24, 2017 3:19pm-4:43pm EDT

3:19 pm
concept coming from? and what was the job it was doing for individual americans? i think that one thing that i realized in the statistic long-term is that the very language we use when we talked about foreign countries, has been kind of determined for us a long time ago, because we tended to look, especially in muslim and countries in the east, where they catching up with us, or whether they behind us? prevents does, is it you from being able to see the country on its own terms. >> watch afterwards tonight at 9 p.m. on c-span twos book tv. announcer: now, a panel reviews some of the opinions of the late justice antonin scalia and his judicial approach towards a procuring -- appropriating the constitution. one of the speakers as a white house counsel who served during
3:20 pm
the administration of george w. bush. this hoover institution event is about an hour and 20 minutes. >> good morning, i am paul peterson, director of the education, policy and governance at harvard university , and a senior fellow at the hoover institution. i would like to welcome you all today to an event that celebrates the publication of the new book called "scalia's constitution, essays on law and education." it is published by paul gray mcmillan and the editors are myself and michael mcconnell , who is a professor at stanford university's school of law and was a judge of the circuit court of appeals. of appeals.
3:21 pm
we held a conference about year ago in which all of the papers that were gathered together for this short publication were discussed and analyzed and we have with us today, to the participants in the conference and opposite to the essays included in this collection. antonin scalia was an associate justice of the united states supreme court who wrote and signed opinions directly on fundamental elements of the american system. he was also a scholar and a leading public figure. it is appropriate that to honor this man with the selection of reflections on his impact on education. seeing broadly as not just schools, but scholarship in public discourse as well. in doing so, we hope to discover the, through the education and -- the education window, a look into the fundamentals of the justices thinking if you doubt his impact on constitutional
3:22 pm
cast unseen at harvard that he was not only one of the most important justices in the nation's history also among the best. and justice elena kagan says that part of his greatness consists in his abiding commitments above all to the rule of law. principlesation of communicated in that distinctive transformed our legal culture. nearly 30 years of service on the supreme court only a few have sympathetically , considered his constitutional approach to judicial interpretation. his powerful prolific writings are partly to blame. author of several books and numerous lectures them scalia was able to defend his position so skillfully, his disciples seem to have held back. as a result, most assessments of
3:23 pm
his life and work are critical. we offer in this collection of writings, the hope that it will go some ways towards balancing the current -- scaliana and encourage others to have their own contributions. although this is a sympathetic interpretation of the justices 's contributions, it is no eulogy. the collection includes an essay by a strong proponent of the living constitution. and others identified tensions and limitation in his thoughts. education may be thought to be an odd entry point into his thinking but basic constitutional questions, free exercise of religion, freedom of speech, equal opportunity, due process of law federalism and the role of the expert pricedrrived -- all are -- all arose when considering the institutions that prepared the country's next generation. to appreciate his constitution,
3:24 pm
it is necessary to place it in historical context. so, in my opening essay, at the risk of great oversimplification, i define the history of constitutional -- i divided the history of constitutional interpretation into four broad historical periods. the first project called nacve regionalism" lasted for more than a century. during that timeframe, justices simply and without apology, interpreted laws as constitution or not by looking at how they compare to the document itself. but at the beginning of the 20th century and well into it, this perspective comes under increasing attack from traditional the naive regionalism. they say that it is not this line of interpretation, it is nothing but a mask for capitalist dominance in american life. they said that inside of the oftices exercising the power
3:25 pm
judicial review, they should defer to the will of the majority. and that realist view comes to dominate court thinking during the new deal and the switch in -- the stitch in time that saved nine is thought to be a critical moment when the court begins to back away from declaring laws of congress and date unconstitutional, because they do not fit with what some think is the correct understanding of the constitution. so, judicial deference to legislative majorities is the dominant view in the postwar. the 1960's, when in the wake of the brown decision the court was in the , direction of interpreting the constitution as a living document. one that can change with the experiences of the american people as interpreted by the justices themselves. and so, this of thinking, which reestablishes as a definitive
3:26 pm
interpreter of the constitution, but now, and unconstrained court, one where justices can express their own perspective on the issues of the day, is the one that antonin scalia a is troubled by. and to counter that living constitution doctrine he , constructs what i would call a regionalism." one that plays close attention to the text of the constitution. and the meaning of the text as originally understood by the people that read it. not the original intentions of those who wrote it but the meaning of the text , as originally understood. and he combines that with the respect for judicial precedents and takes into account the judicial realist critique of not accommodating to the will of the majority as expressed in legislative
3:27 pm
enactments. so this new original is some has a ruggedness that is able to stand up to -- this new origi nalism has a ruggedness that is and perhapsd up to , thatin two new period will provide the court with some alternative to the living constitution doctrine that has held sway for such a sustained period of our contemporary history. that is my overarching perspective. the members of our panel today are going to elaborate their own perspectives as it applies to specific domains of this question, what is scalia's constitution, as it pertains to education? introduce all of them now so that we can move quickly through the panel. is that thomaser
3:28 pm
p o'neill professor of american politics at austin college, his research and writing focuses on the intersection of law and politics. he has written several books and many articles with the one that i think is most pertinent to mention today, as of the forthcoming book that brookings will be publishing early next year entitled "the transformation of title ix, regulating gender equity in education." i am sure you will find it very pertinent to the contemporary debates over the meaning of that piece of legislation. our second speaker will be amy wax, the robert moon time professor of law at the university of pennsylvania law school. she holds degrees from yield, harvard and columbia and serves as a law clerk to a judge on the d.c. circuit court of appeals. was my representative
3:29 pm
to congress when i lived in chicago, i think he was a terrific individual at that time, and it sure there was a toat opportunity for amy hone her skills as a legal analyst. she then worked in the office of the solicitor general at the department of justice. finally, we have as a commentator on the enterprise, ambassador board and gray who was a founding partner of law -- of boynton parter and associates of law, a strategy firm in washington dc. he has for many years, focused on constitutional regulatory issues. he was the white house counsel to president george h. w. bush. he has served in many other positions in government and was the ambassador to the european union. . i must add that he was editor in
3:30 pm
chief of the law review at the university of north carolina he , clerked for earl warren, chief justice of the united states supreme court, and the man who had much to do with the construction of the living constitution. so it will be great to have all of these perspectives this morning, and we will try to ask everyone to keep their comments limited to 15 minutes or so. >> thank you, paul. when paul first asked me to contribute to this volume, i was a little bit amused because i thought it would be like writing a commentary on the barking of a dog that did not bark. and by that i mean that justice antonin scalia did write a lot about his education philosophy or his theory of law and education.
3:31 pm
>> so i constructed this short summary of what i thought justice scalia would say on his views of law and education. quote -- i do-up not have much to say about law and education, is that i have coherent views on education, the influence of where i send my children to his will, and how i vote in the voting booth. but not much to say but what i do as a judge. unlike state constitutions, the u.s. constitution does not even contain the word "education? public schools are no different from any other public institution, they cannot discriminate on the basis of race they cannot establish a , religion and they cannot discriminate against religion. to be sure, many federal statutes govern educational institutions but my job judge is to read and apply the text of the law and not allow the personal views of education to come in on the back about claimsation,
3:32 pm
of statutory purpose or reggie -- legislation history. the method i employ interpret the constitution and federal law contains no special provision for educational institutions and they shouldn't be because i would -- it would suggest that i know more about education then school boards, legislators, governors and school administrators. i don't, and judges should realize that they do not. now, this is obviously quite different from many of his more liberal colleagues. it has for -- because, for many liberals on the court, the job of the judge was to promote equal educational opportunity, and that is what justice breyer called not the words of brown but the hope and promise of brown. and in order to do that, they needed the help of a lot of amyrts, and that is what will be talking about, about scalia's view.
3:33 pm
justice scalia's view was that what brown versus board of education culminated in was a very simple rule. not a broad quest for the promise and the hope of brown but the rule that our constitution is applied and -- is colorblind and racial classifications are so pernicious, lest they should be used only in the most limited circumstances. the purpose of the courts rulings on brown and his successors is not to provide the best education but the worst possible abuses and that is the use of racial classification. during the conference, tried to provoke some controversy. he knew amy would never say anything controversial. so he tried to provoke an argument between the dean of the harvard law school, between
3:34 pm
ryan and myself in which he succeeded in doing and resulted in an article in education that i think has been handed out. and this was, i think a useful debate. here's what jim ryan's argument was, something you have probably heard before but i think he stated forcefully, that it required some response. his argument especially about justice antonin scalia's view actionery motive programs in the university -- affirmative action programs and the university of texas for example were unconstitutional. his argument goes like this, number this view of one, the colorblind constitution is not in the text of the constitution. it is not in any original attempt by the founders and framers of the 14th amendment. it disregards presidents --precedents, it overturns a
3:35 pm
decision of state and local decision-makers so to the extent that justice antonin scalia excessive untaken view, he is contradicting everything he claims to stand for and this is pure policymaking of the sort that justice antonin scalia condemned others for doing. >> the way that i would respond to that, and i think this goes to his jurist -- jurisprudence, i do not leave that justice scalia claimed that there would be one way of determining if and what was unconstitutional, but rather that there were a variety of considerations that needed to be taken to count. to some extent, it makes it hard to say that the rule of law is a law of rules, because it requires some consideration of these balancing and looking at these hard cases. but what were these series of
3:36 pm
considerations that were important to him? first and most importantly was the text of the coming -- of the constitution. justice scalia said under his view that tax and perdition, which means well-established precedent had to be respected area i think the most important of this is brown versus board of education. no matter whether that case can be squared is really with the text and original understanding, it is so well entrenched and , thatedly well entrenched it has to be one of our starting point. on top of this, respect for elected officials. lawseople who write the respect,ts we should congress, and state and local officials. further down the list, deference to administrative agencies. if you do not believe the judges you go to other experts.
3:37 pm
and finally, i think in general, appreciation for the limited ce andence -- competen capacity of judges. brown creates a hard case for a textual list. justice scalia really did not think much about the grounding of brown. one of the co-authors, michael mcconnell has tried to show that there was support among those people who authored and voted for the 14th amendment, to prohibit the use of a result is -- racial classifications in education. that is one part. but what justice scalia said when he did talk about it was that there is this long tradition of understanding the constitution as colorblind, stretching from professor mcconnell, what he found, the authors of the 14th amendment, that justice collins's famous dissent, to the views of the naacp who argued that brown
3:38 pm
versus word of education case. -- brown versus board of education issue. often forgotten i think it is particularly important is with the civil rights act of 1964 says. clearly they say that racial discrimination of any sort is forbidden, even if it is used to achieve racial malice. best racial balance, and finally, a wide variety of court decisions on suspect classifications. and i think behind this, lies an understanding which i clearly ofre about the unique evil racial classifications. especially in a system such as madisonianrelies on searle is to govern -- madisonian pluralism to govern. now, in trying to deal with the legacy of wrong justice scalia , tried to limit some of the expansion through the
3:39 pm
.recedence i especially used the leading example which is a case in which 1971, dean ryan and justice by basically take the analysis and if any of you know anything about this case it is probably the most baffling, confusing self-contradictory decision ever written by the supreme court. and i think that is saying a lot. -- what i would say is that justice scalia, in trying to prove back some of these -- prune back some of these was above all saying that these decisions which were used to deal with the ordinary problem of southern school desegregation, which was the extraordinary opposition, and that general government had to take extraordinary measures to
3:40 pm
deal with it -- that they should not be applied to ordinary circumstances. we should try to revert back to any method of statutory interpretation of the constitution. i thought i would mention something thing -- another problem that justice scalia wrestled with, and that is a case in which civil rights are established under civil right underes, and especially the regulations issued by prime minister agencies. i have been working on title ix endlessly for the last couple of years, and am of you might know that at the beginning of the year, the supreme court had on its docket, the gg case, about the axis of transgender students office ofms and the civil rights and the department of education had issued a letter, basically saying that
3:41 pm
schools had to respect the gender identity of judith in allowing access to gender-segregated facilities. the fourth circuit court had up upheld that and the supreme court decided to review it until the trump administration withdrew the letter and the supreme court sent it back to the fourth circuit. now, i must say, i would have liked to read justice scalia's opinion in this case. it would have been an opportunity for him to write one of his most vivid and witty and memorable decisions. but he didn't get that opportunity. what i would point out is there is an irony here because i'm sure that justice scalia would not have upheld the fourth circuit but there are two of the most important presidents that have that were cited by the courts in those cases, and one was that justice scalia voted with the majority, and the other in which he wrote the opinion, that was the other
3:42 pm
case. i won't go into detail but just as scalia wrote that the sweep of title ix and especially it's sexual harassment rules, is not limited to what legislators had in mind at the time. at a justice scalia has also various times been an advocate of deference to administrative agencies including their interpretation of their own regulation. s. so this is a problem in which he legislativeloyal to , and trudged to recognize administered of expertise. i think it has increasingly led to a situation where he would be appalled by the outcome, at which often, especially in morals about affirmative action, he would have to decide whether it violated the constitution. and in many cases, i think he would say, yes.
3:43 pm
so, i would like to leave with this thought, which is that justice scalia's understanding gives us a number of different serious concerns about how we should govern ourselves. but it leaves us with the difficulty of trying to bring some order to these important concerns, when as is often the case, the conflict. i think that is going to probably be the most important job of the people who consider themselves to be followers of justice scalia. talking of the new justices of the supreme court, talking about how we can square the doubts about judicial capacity, our concerns about re-constraining the court's ability to read
3:44 pm
however they want into the equal protection clause. our respect for the democratic process, and these things sometimes conflict, and that is the job of all of us in trying to carry out his legacy. >> thank you, shep. amy: thank you for having me. i am very glad to be here. in the paper, the chapter in which i base my talk them a i address the role of expertise, the use of specialized knowledge and methodology in just his earlier's opinions and especially in education decisions but others as well. here is what some of what i'm going to be saying or reporting about justice scalia and it might be intentioned with what shep has said which i think shows that justice scalia is not always consistent in the way that he treats expertise and here i'm referring specifically to his philosophy of deference to administrative agencies.
3:45 pm
so i think it is very important to keep that in mind, and i go into more detail in my chapter. what forms of expertise do i mean here? well, there are really two main types and those loom largely in modern context in our current political moment. the first is scientific, including social scientific that is the systematic study of social life and relations and human behavior using scientific method. this is familiar to us through the fields of psychology, economics, sociology and, of course includes research on education and the development of so-called human capital. the second body of expertise is legal. the rule of law's principles and especially the analytic methodologies by which lawyers are schooled and in which they are schooled in about which they reportedly possess security -- superior skill.
3:46 pm
my paper explains that justice scalia's expanse on general, some legal expertise specifically ranges from cautiously skeptical too dismissive. i seek to connect that attitude to important elements in conservative thought. it is important to note that conservatives, of course not a model list, encompassing various schools of thought are not hostile to science or specialized skills where a properly applied rather they are suspicious of what philosopher anthony clinton called the. bash the system logically conservative forms of expertise. [inaudible] conservativism is an electrical not just confined exertions of but also to discredit overdrawn claims of superior knowledge and insight that they believe are easily subject to abuse. in a nutshell, conservatives
3:47 pm
look at experts's attempt to manage govern and shake social , life based on claims of six. -- shape social life, based on claims of sex. their insight into human nature and behavior are too often supposedly expert who claim no more wisdom the more general knowledge than ordinary people. conservatives are anti- elitist and in fact, it's quite the opposite. they just have a particular conception of how elites should be selected and elevated in their proper role in society which is to sum it up succinctly simplistically, is that they should serve mainly as a stabilizing and preservative force or at least caution as agents of change, and not function as meddlesome, destructive social engineers to transform existing regions in accordance with their theoretical commitment and, in many cases, their political views. so what is the source of the
3:48 pm
conservative beef with expertise? before i get to scalia's opinions on this i want to elaborate a little bit. well, many are wary of the ability of rationalized systems of knowledge, generally and especially in the human sciences , to fully explain and to fully inform the management reform and improvement of the human condition. for many the so-called improvements don't end up improving, as often as not. they destabilize or destroy, what deserves to be preserved. including long-standing traditional arrangement that cost too often impose on those least able to bear them. it is good to be reminded of the trenchant observations of the greatest 20th-century social theorist, albert o hirschman, no conservative himself, who said that conservative arguments generally come in three varieties: arguments of the facility, imposed improvement -- proposed improvement will not
3:49 pm
work, longevity, that they will destroy something valuable, and from diversity. whatever is for pros will have unintended or opposite consequences to those hoped for. all of these are made by conservatives and all of these claims against the pretentious application of expertise. in this phase is elaborating on a cluster of insight that stands behind the conservative skepticism. a robust sense of the limits of first, human reason in understanding. an acknowledgment of the stubborn infirmities of human nature and the crooked timber of humanity which resist drastic manipulation and perfectionism. a hostility towards an expansive centralized administrative state as a means for experts to shape behavior in institutions, and antipodes -- antipathy towards the rise of an administrative state, of an elite managerial class, eager to push their vision of social life on unlimited human potential on the rest of us. a skepticism toward elites claims to operate on the basis
3:50 pm
of objective, neutral, scientifically informed methods of independent ideology that help legitimate their authority. and finally, objections to to andelites's hostility sometimes disdain for traditional decentralized, ad hoc, informal, irrational prejudiced approaches to social including some long-standing practices and approaches in matters of education, of character formation, of bringing and family life. -- of upbringing and family life. in my paper i review a sampling of prominent thinkers to put forward these views and these include frederick hayek, michael, alice mcintyre, james burnham, richard weaver, steven hayward and thinkers that my students have never heard of. alastair mcintyre in his book explains his
3:51 pm
grave doubts about the government in modern bureaucracies ability to manage and governance social life. he is summit with what i just said, on claims of superior insight to read once again, although recognizing a role for science, he denies that the scientific method can gain insight into ordinary human behavior in politics and social relations, even in economics, due to the "the sheer complexity of human behavior and social life, and it moral dimension, resists generalization and prediction." he adds that "denying this unruliness late to abuses of authority by the so-called experts under the guise of scientific impartiality." in the final part of my chapter, i identify and explore justice really is articulation of some , skepticismmes
3:52 pm
about expertise, and not only in the treatment of social science but also as a light the important realm of jurist activities, to interpreting and analyzing the law, as is embodied in the process of judicial analysis and decision-making. after all, he is a jurist. in fact, scalia frugally identified the findings and legal principles that purport to support judicial decisions as lacking in determinacy, impartiality and the objectivity which he says is claimed for resonatesi think this to the whole living constitution issue -- by lawyers and judges under the banner of their methodological expertise. he often defends traditional and customary understandings that understandings and ordinary practices against attempts to override them under the guise of the evenhanded application of legal analysis
3:53 pm
and legal principles. finally he depicts, for better or for worse much of the federal judiciary as a like-minded elite expert class that goes into a progressive class of society and uses claims of expertise and objectivity as a cover for smuggling in their preferred policy choices. and politic all choices as well. these expressions of these ideas are not hard to find, and the education cases and in other areas. i have a whole host of examples in my chapter, certainly not exhaustive, but i will touch on two of them very briefly here. in the education area, there is scalia's dissent in the bollinger case, in which the court upheld the use of affirmative action and law school admissions of the university of michigan. justice o'connor writing in support of that and states that educational administrators and professors deserve deference on their expert professional judgment that racial deborah city is vital to the law school admission and pedagogical effectiveness, and that racial
3:54 pm
preferences are absolutely necessary to deliver these benefits. in his dissent, justice elliott takes issue with that, and denies that university official deserve deference as russia last experts endowed with superior insights on how best to educate law students. he cast aspersions on what he viewed as empirically unsupported claims that law students would benefit from this engineered diversity, to become better lawyers as a result. he did not -- he admonished the experts for assuming once again that the lessons of diversity which he views as a sick lessons in citizenship, could be effectively or most effectively transmitted at the law school level, rather than by for example by traditional modes of culture transmission and inculcation, through the family or religious institutions, civic
3:55 pm
organizations, or scouts, and other avenues and the like. case,econd education freeman v. pitss, scalia cast dispersions -- aspersions on exercise of expertise in the context of interpreting the constitution as applies to school disaggregation. the court remanded a long-standing desegregation order to determine if the school district that issue should be relieved of court supervision. one issue in the case was how much remaining actual segregation in the district was traceable to past legal segregation, and therefore remained to be legally corrected and how much was not. islia's concurrence specifically addressing this, offering a general critique of the court's methodology in this litigation cases. he observed that the court has never developed a reliable and precise formula for determining whether the imbalance of student
3:56 pm
pretreatment can be traced to pass official actions as opposed to "enter biddable to private number graph -- demographic shifts." he expresses doubt that the judges are quick to make these highly determinations especially as official segregation recedes into the past. the consequences of the failure and rhetoric accompanying it suggest that it's an arbitrary extortion of power to bring about the results judges regarded as best for society, without any sound justification. because their analysis is so shaky he says, the courts decision is to cover for the judges preferred policy outcomes, which is more court ordered supervision, more court ordered integration. now, in closing, i wanted to say one theme tying
3:57 pm
these cases together and one found frequently in gallia's opinions is that lawyers and judges indeterminate and open ended methods under the guise of a attention of determinate messages, these are results oriented judging area at of course, this assertion raises a host of myth a lot -- methodological questions and serious questions i think. is there a more determinative impartial alternative or for judicial decision-making that would eliminate or reduce this problem? obviously, scalia had something to say about that, his work on original is in for example, and many have questioned his analysis. alism there on origin with so i live you with a very hard problem. exactly how should judging a legal analysis be reformed to avoid and solve this problem and is this even possible. where is the reign of legal elites, in government, and society generally with their biases and preferences and their
3:58 pm
leanings, and their inevitable future of our political system, which must to that extent be partisan. is there some way to reduce their influence, and when we really want to? what does the reign of elites mean for our political presence and our future? those are the questions that i leave you with. thank you. >> thank you, amy wax. ambassador gray? illuminatechance to the manuscript as a whole, and we look forward to your comments. : this might be a wee bit provocative but hopefully say. i have two points to make. that it is surprising to
3:59 pm
me that there is no citation in this book, no discussion in these papers of what i consider to be the second most important school segregation case, which is totally ignored. griggs.e is i had researched on to figure
4:00 pm
out what were the two top cases. griggs is an important case. griggs, in my view, essentially overrules brown. on the question of expertise, i think that an administrative state and who is going to be telling us what to do, i think that is now undergoing a change in the courts. i think that was a big part of the nomination of justice gorsuch. he had written more than any about the question of question ofd the unbounded discretion of giving , ofcourts too much leeway
4:01 pm
making it too easy for the agencies to make it up and utilize their expertise. i think justice thomas thinks there is no authority at all to make up rules. session a story of one that involved a supreme court inument involving chevron deference to a rule of interpreting the rule of an agency as opposed to a rule of the way justice thomas tells it, justice scalia are leans over and says that decision may have been the more -- the worst decision ever rendered. justice thomas says, you wrote it. [laughter] >> i think he was changing his mind.
4:02 pm
had written an earlier opinion in 2000 saying if there is an issue of non-delegation, that is overbroad, overbearing delegation from congress that provides no guidance for the agents or courts to judge, then it is the court's job to interpret what the statute is supposed to mean, not the agency. since the two are so connected, there is one big exception to chevron which has been ignored. , there is a case that isg climate change called -- i do not know what the name of the case is colloquially -- it has to do with changing to make theds
4:03 pm
statutory scheme easier to implement. , 250 tons means 100,000 tons. we will start at a hundred thousand and try to work our way down to 250. scalia had one of his great lines, we are not going to sit idly by on the dock and wave goodbye to the epa as it embarks on its voyage of discovery. questionginning to these delegations of authority or assertions of broad delegation. the discovery of ambiguity everywhere. i think we will see much more about this under the next supreme court set of rulings with justice gorsuch now there. the other issue i wanted to discuss is griggs.
4:04 pm
that it is a disparate impact case -- it is where the disparate impact issues come from. usegs said you could not college or high school -- a high school diploma as a screening blacksfor hiring because graduated at a so much lower level, got to plumbers at a much slower -- got diplomas at a much slower rate that you would automatically have discrimination. in -- are a dozen case dozen cases and rules out of the eeoc, all very difficult to follow and all very troublesome about what really is disparate treatment and what is disparate impact and how much should be
4:05 pm
attributed to disparate impact? was administered by a practices through called race norming where you take each ethnic group -- , andnic, black, caucasian you rank them inside their own silos and you pick for admission the top 10% of each group and that is how you get a perfect reflection of the population in the marketplace. when the 1991 civil rights came along that try to overrule the supreme court case that cut back the congress also
4:06 pm
outlawed this practice of race norming. it comes to a head, this question comes to a head in a called richie versus distefano which is the new england firefighters case of just a few years ago, and whether the new haven fire department could use teaching by a supposeeloped it independent test producer to be used for both written and oral applications in the ranking of the applicants for the job. the supreme court had a very lengthy opinion, it is about as long as they get.
4:07 pm
the interesting thing is they the statutes require both application of disparate impact and disparate treatment. question ins the the majority opinion, if you are trying to correct disparate impact, you have to use disparate treatment. how can you reconcile those two? the court manages to do it with some great gymnastics. i had to read the gymnastics a few times to really understand the virtuosity of kennedy's opinion. scalia does not let him off the hook. this is where he ends up on the question of what brown means and , nott should be applied
4:08 pm
just in the context of school busing or even higher education admissions, but the use of education broadly as a method for screening for job opportunity. example, ofr having's practice of employers in local areas take over -- not completely, but almost -- take over the instruction over what should be instructed at the local community college or high school. they tell the teachers there what they need to have, and i can assure you that when they by performance. by how well the students have performed in terms of the
4:09 pm
learning of the curriculum they have devised. , at least until the richie case, you could not if you are an employer, not for law schools, lawyers get exempt. >> military as well. >> the military is exempt. the military is quite exempt. if you are a general employer, you cannot ask for transcripts of the student from the high school, you cannot even ask for evidence of a diploma. that is pretty rugged. the u.s. government does get a pass on that. the army and the navy and the marine corps and the air force graduate-level diplomas or acquit lentz as a screen for admission for recruitment.
4:10 pm
it is interesting to see that minorities ended up in a much higher percentage in the military than they do in the working population at large, or their own percentage of the population at large. since my time is up, i will lasty quote from scalia's -- this is a blessedly short scalia opinion, one of the shortest he ever wrote. four pages. it is easily absorbed. the resolution of these cases makes it unnecessarily to absolve these matters today. how you reconcile disparate treatment with disparate impact. impact between disparate and equal protection will be waged sooner or later and it behooves us to begin thinking about how and on what terms to make peace between them. think we have come to
4:11 pm
grips with this yet. i do not know what cases are getting up there to come to grips with this, the richie case put to rest many of the questions people had that were bouncing around the courts andeen the time of griggs the time that the supreme court case cut back on griggs and the 1991 civil rights act came up as a response. it lays to rest much of this, but the whole question of quotas and whatnot is still not resolved. his currentreading and some of his other opinions, that's the leah would have come out -- that scalia would have
4:12 pm
-- you cannot use disparate treatment to correct disparate impacts. that would violate equal protection. that is what is you would be. we do not know for sure. -- that is what his view would be. that is the question that i do not think has been resolved. >> thank you. i think we should give shep a chance to comment on the griggs case. breaks.ple points about i think it fits -- a couple points about breaks -- about griggs. i think it speaks to us scalia's reading of the equal protection clause. most of you know this, but the griggs case was written by chief justice burger and part of the
4:13 pm
background there was that due power was a very bad actor, they do not come with clean hands. one of the most important things to remember is this was a statutory case, and most of these issues are statutory issues. this was under title vii of the civil rights act. when the supreme court did start cutting back on breaks -- on 1990'sin the mid to late , ambassador gray will remember this well because he was right in the middle of the congressional fights about this. once the court cut back, congress and we like the system we had before and they came to the defense of the previous, the court's rewriting of the civil rights act. on race norming they overturned
4:14 pm
the race norming new practices. when it came to the burden of proof of disparate impact, the congress said we want to go back to the griggs standard. scalia, do i defer to what congress has said or do i overturn that with my understanding of the equal protection clause? that was one of the central dilemmas that justices are going to be facing over the next years. >> amy? i've written two big articles on disparate impact. i know the case very well. i would make a few comments about it. first of all, i commend you for bringing up that case, you are right, it is an important episode in understanding justice
4:15 pm
scalia's thinking about this matter and a very important case. in griggs, the court did not say that using these educational credentials was absolutely prohibited. they said it was the use could be justified by the employer by showing business necessity. that is a manipulable standard and a hard standard to meet. device,parate impact which i think it is fair to say justice scalia has some real issues with as denoted by his ricky decision has spread to other areas, so it has been extended to housing under the fair housing act, any practice, local zoning or other policy that has a disparate impact on minorities is suspect.
4:16 pm
it has been extended to school dearpline through colleague letters and ruling by the department of education. it is a disciplinary practice in -- we schools that have do have the proliferation of these policies and i think that if scaliaontemplation were with us today, i do wonder whether he would redouble his that in and remind us fact to implement these policies we do need to be race conscious in ways that might run afoul of the constitution. i want to comment on the that wheaton gray --
4:17 pm
yton gray brought up. it is important to understand that scalia was originally very congressionalt committees running their preferences into law. by writing a fairly vague statute and then having committee hearings and committee reports that went into much more detail and were written by advocates for some noble cause courtsher, and then the would come along and use these committee reports as the text to interpret the statute. even when the administrative agency did not interpret the statute in that way. he was inclined to say let's go with the text of the statute and then if you have interpretations
4:18 pm
of the text, you should have the administrative agency's interpretation count as decisive, not some committee report that the whole congress never saw or never considered. the issue evolves and becomes a situation where that is no longer the problem. a new problem arises. some of the language she had used to address the initial problem gets in the way of solving the new problem. ambassador, what is your reaction to those comments? this could get into a law school class debate. think -- that would involve some bias, you have to take that into account.
4:19 pm
i do not think what the congress did was reverse and go back to griggs. rickynority opinion in tries to say that is what they did and there are a lot of terms used in these cases. what do they mean? manifest relationship was not the standard used in the way it roomssolved in the back just before it went to the floor the businesso use necessity language that was adopted in the americans with disabilities act which was not a bill. it was never thought being close to being a quota bill or a disparate impact bill, let alone a disparate treatment bill.
4:20 pm
the -- thee rum language does not refer back to progeny up to the decision that reversed much of this progeny. we can get into a big argument about this. all i can say is that ginsburg, and her strong dissent goes on forever. and -- sheo fight lost five-four. on the question of deference, it is true that justice scalia did not like committee reports. he did not like floor statements. floor statements were written like people like me and inserted by the reporter as having to deliver on the floor when the speaker was somewhere in
4:21 pm
timbuktu. he was right to be skeptical of all of that and he knew all about that. in those days, the early days when i first started, people did care about the actual language of what was being worked on. forget the reports, forget the floor statements. ande were food fights parliamentarians were called in to rule on the validity of this amendment or that amendment. how many people have heard of an amendment to the third degree? one hand goes up. you could not get through -- it was great theater to go to a session and watch the food being fought over, whether or not an amendment could be used to amend or an amendment could be used to amend an amendment.
4:22 pm
people would ground out every word that i can assure you from dingellience, john never would have given any discretion to the epa if he could avoid. he gave them the numbers they had to use. it was not dream up or grant, it is that is what it is and live with it. congress started, part of it is the three day work week, it is hard to have deep sessions when you are -- and then campaign finance laws, they spend most of their time raising money. every single campaign-finance improvement has worsened my balance sheet. ,0 years ago there was a limit
4:23 pm
i can say i am maxed out. now you cannot say your maxed out. there is no limit to how much i can give. so much for reform. >> i think it is time for us to open up the audience. you want one more response? quick thing about the civil rights act of 1991. ambassador gray was in those back rooms, i was not. one of the interesting things that links the question of legislative history to that act -- the meaning of the act was so unclear that everyone was trying to get in their understanding of the legislative history or it -- of the legislative history. i believe a senator stood up and said one thing we have agreed on as there will be no legislative history. we all greet we will not engage in this game.
4:24 pm
gotdiately, senator kennedy up and said what senator danforth meant was x, y, an z. accomplishments was to reduce the frequency with which the courts looked at this. if someone was saying why don't we just do this through legislative history, barney frank said i will answer that in .wo words -- antonin scalia studentstruck by my ideas about justice scalia, that he is some kind of demonic figure that stands for all the wrong things. what i say to them is scalia has been a very salutary influence in disciplining judges to look at the actual wording of
4:25 pm
statutes and carefully consider them. he sternly stood over them and insisted that they do that. the propensity to do that, to go back in time to older cases was severely lacking. i think students see that trajectory toward more discipline and attention to the actual wording of legislative enactments that are partly school he is doing -- that are partly scalia's doing. >> i am sure this conversation has stimulated thought in the audience. just wait, we are going to give you hopefully a working microphone. >> a few weeks ago a group of asian american students sued harvard university's admissions procedure for discriminating against them. one of the statistics they used was the enormous spread between
4:26 pm
asian american sat's for acceptance at harvard and black sats. i am a harvard graduate and i've agreed to interview applicants this fall. i'm meeting with a few fairly soon. if i happened have any asian-american students i hope the panel will give guidance as to what i am supposed to tell them about harper's admissions policies. >> i just read an article about this called "i'm not dreaming of affirmative action." one important point that cannot be forgotten is that private institutions can do pretty much what they want. there is title vi, there are some legislative limits, but affirmative action has not been litigated on that basis. it has been litigated on a constitutional principle and all the cases have involved public universities.
4:27 pm
that is an important thing to remember. for better or worse, harvard has pretty much a free hand in discriminating against who they want to, or whatever standards they want to use for admission. as i tell my children, the fact that you have a right to do something does not make it the right thing to do. the discussion needs to take place on the plane not of what is legally permissible, although once a 10, under statutory that might be debatable, it is what should harvard be doing, how should they be choosing a leads? -- how should they be choosing elites. this is a long-standing issue and it is not an easy one. the honor ofs being referred to in the body case of doing the right thing. diverse the policy
4:28 pm
and amy is right, they were a relevant in that case because they were a private institution. whatever they were doing was their business, it was not appropriate for consideration. mr. powell found that as a way to solve a problem that he had. any others? i cover the supreme court for education week and other publications. i do question, like ambassador gray i looked at the essays and i was looking, i think in vain, for a discussion of a provocative issue justice scalia wrote about. a case about visitation rights. it was his believe that there was no fundamental right, no
4:29 pm
substantive due process right for parents to direct the upbringing of their children which includes education. that goes back to cases in the 1920's. i was going to read from the georgetown law, i'm not checking opinion, hes is the said such a parental right is not in the constitution, i will not enforce it from the bench. i wondered if you might be able to comment on that since i did not see it in the essays? big disputes within conservative jurisprudence is whether there are rights that are not enumerated that should be respected. there is a big difference between justice thomas who says
4:30 pm
we need to look at the declaration of independence, and that says there are natural rights that might not be listed as spit -- explicitly in the constitution, and that would seem to be a good candidate for these natural rights. justice scalia was extremely reluctant to do that. he wanted to look at the constitution and not talk about the spirit of the constitution or the driving force behind the constitution. position,g run, that which in some ways becomes more positivistic is probably not going to prevail. on the other hand, i must say i have significant respect for justice scalia's skepticism. i think this goes to amy's point about skepticism of experts, that we can, that judges on the supreme court are particularly adept at identifying what those fundamental rights are. >> i think that is a wonderful
4:31 pm
case to bring up because it focuses us on this debate about substantive due process where scalia is adverse to the recognition of any unenumerated rights in the constitution. what it also shows is this issue of the rights of grandparents versus parents is that substantive due process, or a repudiation of it, cuts both ways. sometimes in refusing to recognize these natural rights that are incorporated in the constitution, sometimes this gives the legislature of freehand to do things which a traditionalist and the conservative would dislike. give grandparents visitation rights and dereliction of parental authority. scalia was willing to bite the
4:32 pm
bullet on that stuff. sir?s, >> my question stems from the last exchange and earlier that professor melnick made. you said that scalia would've voted to uphold brown defendant never come up. there was another case that reflected whether the federal government should be subject to the same limitations that the court was adopting and brown, the supreme court said yes. if that issue came up before justice scalia, what you think his response would have been? then or wouldbeen have been 20 or 30 years later? >> i think justice scalia would
4:33 pm
have said what we apply to the states, we should apply to the federal government. yes, the argument that somehow due process is the same thing as equal protection is pretty hard -- is a pretty hard logical case to make, but i would make this point. being a judge requires statesmanship, not simply logic. we see that best in chief justice marshall. such an embedded part of our political understanding, and for extremely , that there is no reason to look back at that, reconsider it. better to say how should we interpret the basic commitment to racial equality as expressed
4:34 pm
in the view of the court, which is that racial classifications are inherently suspect. that should apply to the federal government as well as the states. >> yes, ma'am? chaired an independent regulatory agency, i can speak to the point of using committee often we would have commissioners determined the outcome of a case based on the committee language. we would often argue whether or not we should use that language or refer to the language to find an appropriate outcome. there it is. it can go to the courts and the inconsistently,
4:35 pm
you can use it, and then they would say no you cannot use it. that is all i have to say. we are dealing with that problem right now because now we have major registration without committee reports. >> scalia has clearly had an effect. there are fewer committee reports. whether that is a better circumstance is left for us to judge. the fact is the court still have to interpret the language of these statutes, they stuck to figure out what they mean and slowly yet at times -- and at times-- and scalia oversimplifies that task. when push comes to sub -- when push comes to shove you is willing to admit there is ambiguity. sometimes there is no single
4:36 pm
meaning. >> i want to follow up on a comment by mr. melnick. byad read an article via -- a former judge who was a litigant on the losing side of a case and he was questioning about how the supreme court was broad look at their role in interpreting the 14th amendment. the amendment said congress shall have the right to enforce this. how it into detail on was argued, and this is in the specter of the dred scott decision, that congress did not want the court to get involved in interpreting that. was an that the city effort by the supreme court, a
4:37 pm
clear understanding of congress not to be so heavily involved in interpreting, having a role in how congress utilize that power. i wanted to ask if there are any comments on that? i will take a quick first take at this. ago i wass two days requiring my students to read the 13th, 14th, and 15th amendment, notice there is that section that congress shall of the power to enforce this. what happens when the court's interpretation conflicts with congress's interpretation? part, thisd say in is frequently the case in american politics, the separation of powers question about the court versus congress
4:38 pm
gets intertwined and a complicated way with federalism questions. congressxtent can force things on the states? part of what through the balance of that case -- part of what threw the balance of that case was the courts inconsistent effort to revitalize federalism. professor mcconnell is such an expert, i cannot go too much e.on that. i probably -- too much beyond that. i probably disagree with him on my view of accommodations. say.have much to i think this is a hard issue, these order skirmishes between congresses a party versus the courts authority, especially in light of the language here of the power to enforce. these issues have been ongoing for ever.
4:39 pm
, i do not know jurisprudence in the sense of what's really a would say -- of what scalia would say about it. all i would say is i consider this issue hard. other questions? if not, to the panelists have some final observations they would like to make? if not, thank you all for coming , please feel free to purchase scalia's constitution. also, join us for lunch which is
4:40 pm
available to everyone before you leave. thank you very much. [applause] >> that was early on, when i believed trump had just announced and they were worried that he was going to be bad for them in terms of women voters. i thought really, you are worried now, considering how far back they have had an anti-woman platform with reproductive rights, equal pay.
4:41 pm
>> tonight on q&a, washington post to its her prize-winning editorial cartoonist. >> this is vice president mike and hehe was interviewed said something like he never goes to washington dinners without his wife. i thought ok, this was a gift. i thought, really? you do not have any problem voting about a woman's personal reproductive choices, which is probably the most intimate thing a woman can deal with, but you will not go to dinner where a woman fully closed is at the same table? q& at 8:00 on c-span's >> tonight on "afterwords." contributor suzy hansen on her travels abroad.
4:42 pm
by theinterviewed foreign policy interrupted co-founder. >> there is that question of our we exceptional, why have i never thought that this was a form of propaganda. why have i not thought to question where this concept was coming from and what was the job it was doing for individual americans. one thing i realized was that this took a long time to realize , was the very language we use when we talked about foreign countries has been determined for us a very long time ago, atause we tended to look muslim countries, especially countries in the east as were they catching up with us or were they behind us. that prevents is you from being able to see the country on its own terms. tonight atfterwords"


info Stream Only

Uploaded by TV Archive on