Since the passing of Supreme Court Justice Antonin Scalia on Feb. 13, politicians and the media alike have speculated on how the U.S. should respond to his sudden and untimely passing.
Baylor President and Chancellor Ken Starr and faculty members of the Baylor Law School aimed to answer this question for undergraduate and law students Wednesday afternoon during a four-member panel session.
The panel, hosted by the American Constitution Society and consisting of Starr and Baylor law professors Rory Ryan, Brian Serr and David Guinn, took time to address both Scalia himself and the vacancy’s implications on the court.
Starr, a former judge on the U.S. Court of Appeals for the District of Columbia and U.S. Solicitor General under President George H.W. Bush, was a close friend of Scalia during his tenure on the Supreme Court.
“He tried to be intellectually honest and he wanted all of us to be intellectually honest, even if we ended up disagreeing with him,” Starr said. “That’s all he asked for. I viewed him on the court as a colleague.”
While widely respected in the American law community for his opinions on the court, Scalia was never one to brag about his intellectual prowess.
“He was our Socrates,” Starr said. “He was searching for truth. And he wanted to engage in arguments. He’s one of the reasons the court became such as lively place you knew that he was looking for the honest answer.”
Another topic of focus was Scalia’s view of “constitutional originalism,” which was the primary guide Scalia used for making his decisions while on the court. As a philosophy, “constitutional originalism” seeks to view and interpret the U.S. Constitution in the same manner it would have been at the time the document was conceived.
“He would say the Constitution is for ‘We The People’,” Starr said. “It is not for justices to impose their view of a better society. He would say were are not drawn here to be judges of equity to ‘do the right thing’. Rather, we are to meditate on the text of the Constitution. We need to set our preferences aside and let the people govern themselves.”
Scalia held this belief to such a high standard that he oftentimes diverged from his generally conservative views in pursuit of constitutional originalism.
“Although he is viewed as very conservative, when it came to First Amendment rights, more often than not, he came down on the side of the speaker,” Guinn said.
One particularly memorable instance of such resolve was when Scalia voted with the majority opinion in Texas v. Johnson, a 1989 case where the court upheld the right to burn the American flag as a form of free speech under the First Amendment.
“There’s little more horrible than for someone to take down the flag of the United States, put lighter fluid on it, set it on fire and say, “Red, white and blue, we spit on you,’” Guinn said. “Yet [Scalia] said, ‘Under our system, it is not the speech that we love, but the speech that we hate that we must protect,’’ He was a devout disciple of the Constitution in its original meaning.”
“He believed that we are not to be governed by unelected judges,” Starr added. “We are to be governed by ‘We The People.’ That is what animated him, and originalism was, in my judgment, a means to that large meta end.”
At the end of the event, the panel discussed the implications Scalia’s vacancy has on U.S. politics for the following year.
“Good government means good politics, and I think good politics means having a hearing,” Starr said. “I don’t think that there is some judicially enforceable right on the part of anyone to insist on a hearing. It’s the exercise of the United States Senate’s discretion.”
