U.S. Supreme Court Justice Scalia packs the house at UM

The U.S. Supreme Court is a court divided, according to Associate Justice Antonin Scalia, who spoke to a packed house at The University of Montana’s University Theatre on Sept. 24.

There are “originalists” who believe the Constitution is static and that its meaning does not change. And there are those who believe the Constitution is a “living document” and that its interpretation evolves with the times.

Scalia considers himself an originalist and argued his position with the authority of a lawyer and judge with nearly 50 years of courtroom experience.

UM’s School of Law brought Scalia to campus for the Judge William B. Jones and Judge Edward A. Tamm Judicial Lecture Series. He was the 10th speaker in the series, which began in 1997, and the fifth sitting U.S. Supreme Court justice to speak at UM.

Scalia said the title of his lecture, “Constitutional Interpretation,” is his favorite subject and adamantly defended his position as an originalist.

“The Constitution is not a living document, for Pete’s sake,” he said.

The idea of a Constitution that changes to reflect the current times is seductive, Scalia added.

“A judge who believes in a living Constitution feels good about all his decisions,” he said.

It is harder to be an originalist, Scalia said, who believes that the Constitution reflects what the people wanted at the time it was drafted and that those standards remain today.

Those who believe in a living Constitution view the document through a lens shaped by the standards of the day.

“I don’t know what the evolving standards of decency are,” he said. “I’m afraid to ask what the evolving standards of decency are.

“You don’t need a Constitution to reflect the standards of the day,” he said. “You only need legislature.”

As the idea of a living Constitution has taken hold over the last several decades, Scalia said, the American people have figured out what is going on.

“The court is rewriting the Constitution term by term,” he said.

Because of this, the American public and legislators are making decisions about Supreme Court nominees based on their political leanings, rather than the nominee’s ability to serve.

By way of example, Scalia noted that in 1986 he was appointed to the Supreme Court by a Senate vote of 98-0.

“I couldn’t get 60 votes today,” he said. “It’s a mini Constitutional Convention every time you appoint someone to the Supreme Court. I’d like to go back to where we were: Judges doing lawyer’s work.”