Now in Legal Rebels:
Posted Feb 05, 2012 12:03 am CST
Updated: Justice Antonin Scalia doesn’t shy from controversy, even before a large crowd of ABA members.
On Saturday during the ABA Midyear Meeting in New Orleans, Scalia answered questions posed by Boston University law dean emeritus Ronald Cass and then from the audience. Topics included abortion, religion, lawyer pay and the justice’s recent opinion on police use of a GPS device to track a criminal suspect.
The only topic that was off limits—and it was Cass who said Scalia couldn’t answer—was on the Constitution and same-sex marriage.
Scalia didn’t hesitate when an audience member asked him whether his Catholicism influenced his opposition to Roe v. Wade. The answer, Scalia said, is no. If he followed religious doctrine, he would agree with those who say the Constitution requires states to ban abortion. Scalia said he believes the Constitution says nothing about abortion, and states can permit or ban it based on the will of the voters.
Scalia also took on the legal profession and the high pay scales that lure top students into the law. He noted he earns less money than his former law clerks who become first-year associates at law firms. What’s more, he said, they get a $250,000 signing bonus. “There’s something wrong with a system where getting someone just a little bit brighter is worth that kind of money,” he said.
Scalia didn’t retreat from previous assertions that too many of America’s best students are going to law school. He would instead like to see more of the top students going into professions such as engineering and teaching. “Society cannot afford to have such a huge proportion of its best minds going into the law,” he said.
Scalia also elaborated on his recent opinion in the GPS case, United States v. Jones. The Supreme Court opinion was unanimous in finding that the police conduct—installing a GPS and using it to track a suspect for 28 days—was a search within the meaning of the Fourth Amendment. But the justices split 5-4 on the reasoning.
Since the case was decided on Jan. 23, experts have differed over how much protection it will give to shorter-term surveillance and whether the decision would require police to get a warrant. The Volokh Conspiracy says the dueling opinions can be read in so many different ways that they are a something of a “Rorschach test.”
Scalia spoke only for himself and four other justices in his majority opinion when he wrote that the police conduct was a physical intrusion that would have been considered a search within the meaning of the Fourth Amendment when it was adopted. On Saturday, Scalia said the decision was “pretty easy” because the Fourth Amendment has long been tied to trespass and property.
Some commentators have suggested Scalia’s approach was more narrow than that of the four other justices, who instead endorsed the reasonable-expectation-of-privacy test established in Katz v. United States. Apparently, Scalia doesn’t agree. “My opinion didn’t repudiate Katz. It is in addition,” Scalia told the ABA audience. “My approach was much more defendant friendly.”
At another midyear meeting event Saturday, Scalia received the Distinguished Honorary Fellow Award from the American Bar Foundation for his lifetime of achievement and public service. ABA President Wm. T. (Bill) Robinson III said Scalia had received enough plaques and presented him instead with a fishing rod.
Scalia expounded on his views that the Constitution’s creation of a decentralized form of government is even more important than the Bill of Rights. “It’s that inconvenient system that makes it difficult to govern, but also makes it difficult to centralize power,” he said.
Scalia was chair of the ABA Section of Administrative Law and Regulatory Practice in 1981-82 and chair of the Section Officers Conference in 1982-83. He concluded his remarks with a reference to the ABA. “I’ve been away from the ABA a long time, and I’m glad to be back,” he said.
Last updated Sunday morning to include remarks from the American Bar Foundation event.