The Law School Magazine  ·  Summer 2009 : Features

Justice Scalia to Visit Moritz to Discuss the Constitution, Role of Jury

By - Summer 2009
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It is certainly no secret that U.S. Supreme Court Justice Antonin Scalia is a fan of constitutional originalism. The idea of a “living Constitution” that changes with the times is not one which the Justice subscribes.

But, how does this concept of  “originalism” play into the role of the jury? The Sixth and Seventh Amendments guarantee the right to a jury trial in both criminal and civil cases. The Supreme Court, in the landmark decision Blakely v. Washington (542 U.S. 296 (2004)), held that, in the context of mandatory sentencing guidelines, the Sixth Amendment right to a jury trial prohibits judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. Justice Scalia’s opinion for the Court in Blakely cited multiple 18th century sources to support the assertion that “just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”

In Crawford v. Washington (541 U.S. 36 (2004)). the Justice again headed to the history books to examine the framer’s intent in the Sixth Amendment Confrontation Clause.

How does the Seventh Amendment demand the power be split between jury and judge in a civil trial? With less than 2 percent of civil cases going to trial, many have argued summary judgments, remitter, and motions to dismiss impede on the jury’s purview. Not to mention jury instructions and other at-trial procedures.

These are some of the issues the Ohio State Law Journal will address in its upcoming symposium, Originalism and the Jury. The symposium, scheduled for Nov. 17, will feature a visit from Justice Scalia.

“The Justice cares deeply about originalism,” said Jeffrey Sutton ’90, a judge [on] the U.S. Sixth Circuit Court of Appeals and a former clerk to the Justice, who has been helpful in coordinating the Justice’s  visit to Moritz.

The symposium is co-hosted by the University of Illinois College of Law. Sutton, Moritz Dean Alan C. Michaels, and Illinois Dean Bruce Smith will act as moderators. The symposium is divided into four panels: Originalism in Advocacy; Civil Law/ Seventh Amendment; Criminal Law/Sixth Amendment; and The Framers and the Jury.

“In recent years, the Court has issued several landmark opinions that have not only found unconstitutional certain types of judicial fact-finding at sentencing, but also have raised fundamental issues about the role juries can, should, and must play in the criminal justice system,” said Douglas A. Berman, the William B. Saxbe Designated Professor of Law at Moritz. “Just how the Framers viewed the role of the jury in criminal cases and also how that vision can and should be effectuated in modern justice system are now critically important topics for both scholars and practitioners.”

About Justice Antonin Scalia

U.S. Supreme Court Justice Antonin Scalia is often considered the backbone of the Court’s conservative movement. He does not believe in a “living Constitution,” he thinks legislative history is meaningless, he does not shy away from being the lone dissenter in a case, and he has a special knack for keeping attorneys presenting at oral argument on their toes. But, who is the man behind the image?

Scalia was born in 1936 in Trenton, N.J., during the height of the Great Depression. His father was an immigrant from Sicily who taught Romance languages at the college level.  The family moved to Queens, where Scalia was primarily raised. He attended Xavier High School, a Jesuit school, in Manhattan. He graduated first in his class at Georgetown University in 1957. He attended Harvard Law School, where he was the notes editor for the Harvard Law Review and graduated magna cum laude. After law school, he spent a year traveling abroad in Europe as a Harvard University Sheldon Fellow.

After living in New York, Washington, Boston, and two yearlong trips to Europe, Scalia settled in Cleveland. He worked at Jones Day from 1960-67. While in Cleveland, the Scalias, who were married in 1960, started a family. There are nine Scalia children – Ann, Eugene, John, Catherine, Mary, Paul, Matthew, Christopher, and Margaret – including a lawyer, priest, English professor, and West Point graduate and U.S. Army major who served in Iraq.

Scalia left private practice for academia in 1967, and he bounced between higher education and government service over the next 14 years. He was a law professor at the University of Virginia and University of Chicago and a visiting professor at Georgetown University and Stanford. He also served as the general counsel of the Office of Telecommunications Policy, Executive Office of the President under President Nixon; chairman, U.S. Administrative Conference; and assistant attorney general, Office of Legal Counsel, Department of Justice. He was appointed to the U.S. Court of Appeals, District of Columbia Circuit, by President Reagan in 1982. Four years later, President Reagan nominated Scalia to the United States Supreme Court, where he is currently the second-most senior justice.

Since his tenure on the Supreme Court began, Scalia has participated in a plethora of landmark decisions, including:

•  In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), Scalia argued that Roe v. Wade should be overturned because there is no constitutionally cognizable liberty to abort a pregnancy.

•  In Lawrence v. Texas, 539 U.S. 558 (2003), he dissented and argued that a Texas statute outlawing sodomy was a rational means to protect the legitimate state interest of preserving  sexual morality.

•  In Kyllo v. United States, 533 U.S. 27 (2001), Scalia wrote for the majority in a  5-4 decision that held the government could not use thermal imaging to detect the growth of marijuana plants in a home.

•  In Crawford v. Washington, 541 U.S. 36 (2004), Scalia interpreted the confrontation clause of the Sixth Amendment to make any “testimonial” out-of-court statements inadmissible if the accused did not have the opportunity to cross-examine that accuser and that accuser was unavailable at trial.

•  In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Scalia concluded that a “hate speech” statute was unconstitutional because it prohibited speech based on content. He came to the same conclusion in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), which attempted to prohibit candidates for judicial offices from announcing their views on legal or political issues.

• Last term, in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), Scalia found in a 5-4 opinion that the city’s restrictions on handguns violated the Second Amendment.

To help lawyers before the Court, or before any Court, he co-wrote a book in 2008 called Making Your Case: The Art of Persuading Judges. The book includes a play-by-play of how to develop solid arguments, how to write high quality briefs, and what to do, and not do, at oral argument.

Outside of the court room, Scalia’s interests are varied. He is an avid outdoorsman, often hunting and fishing in his spare time. He is also an avid fan of the opera, not only attending but sometimes performing alongside good friend Justice Ruth Bader Ginsburg.


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