On Friday, March 21, at the Brooklyn Academy of Music, Brooklyn Law School hosted a stimulating conversation with U.S. Supreme Court Justice Antonin Scalia moderated by Judge Andrew P. Napolitano, a BLS Distinguished Visiting Professor of Law. A former New Jersey Superior Court judge who serves as the Senior Judicial Analyst on Fox News, Judge Napolitano led a spirited discussion with Justice Scalia in which he hinted that the Supreme Court will rule on National Security Agency domestic surveillance – a comment that drew extensive coverage in Gawker, Bloomberg BusinessWeek, Business Insider, Politicker, and other media worldwide.
The topic was one of many timely legal issues raised during the 90-minute program which included a compelling 30-minute Q&A with the audience. Justice Scalia also attended a pre-reception with faculty and a post-reception celebration at the nearby Urban Glass Gallery for special guests.
Dean Allard kicked off the evening with his signature dry wit: “I’m glad a couple of you could make it out here this evening,” he joked with the packed house that included nearly 1,900 BLS students, alumni, judges, lawyers, legal community leaders, friends, and distinguished guests such as Mayor David Dinkins ’56 and Chief Judges of the Eastern and Southern U.S. Districts Courts in New York City.
Judge Napolitano opened the conversation with a declaration that “this is not a debate, it’s a Q&A.” Nevertheless, the words “absurd,” “stupid,” and “ridiculous” were used with regularity by an impassioned Justice Scalia, who bantered with his longtime friend and ideological opponent and took questions from students with decidedly different views of the Constitution. Interestingly, the questions that inspired the most heated responses also drew the most laughs. It seems Justice Scalia may have missed his calling as the world’s most intellectual stand-up comic.
Napolitano’s first question related to the issue of natural law. “Does the Supreme Court ever look to the natural law as a restraint on either itself or the other two branches of government?” he asked. “You’re a big natural law freak!” Justice Scalia answered as the audience burst into laughter. After the commotion died down, the Justice continued with a principle that would be echoed throughout the night:
“I certainly do not think my job is to enforce the moral natural law. I enforce American law. It’s up to the American people to conform that to natural law and sometimes they don’t do that very well. If you want people to enforce the natural law you should not select lawyers, you should select philosophers, ethicists, whatever. I’m a lawyer, and I think I do very well at figuring out what the particular statute enacted by the American people says or what a particular provision of the Constitution ratified by the American people means. That’s lawyers work. Why do you think because I went to Harvard Law School that I know better than Joe Six Pack whether there ought to be under natural law a right to abortion or a right to suicide? What prepared me to decide these cosmic questions? Harvard Law School? That is absolutely absurd.”
Justice Scalia also scorned Napolitano’s inference that the justices engage in heavy jurisprudential debates when they gather for their private weekly conferences. “I have never discussed legal philosophy with any of my colleagues,” he said. “I mean what do you think goes on? Do you think I walk into conference and say: ‘I really think we ought to interpret the constitution according to the way the framers intended it!’ And then they say, ‘My God, Nino, you are right! For 55 years we have been led astray!’ No, it’s too late for them. It’s not too late for the next generation which is why I write dissents.” Laughter again.
Through the course of the evening, Napolitano touched on many hot topics including freedom of speech, the death penalty, searches and seizures, and the right to privacy. But it was one question that perhaps piqued the Justice’s interest most. In the context of the controversy over the constitutionality of various NSA domestic spying initiatives, the audience member wondered whether Scalia considered data stored on computer drives to be the sort of “effects” covered by the Fourth Amendment’s protection against “unreasonable” government searches.
“Ooh. Ooh! I better not answer that,” he said. “That’s something that may well come up. It’s a really good question.”