U.S. Supreme Court associate justices joust over judicial views at USC

By Peggy Binette, peggy@mailbox.sc.edu, 803-777-5400

University of South Carolina law students had a rare opportunity Friday (Jan. 20) to hear a rousing discussion between U.S. Supreme Court associate justices Antonin Scalia and Stephen Breyer on how the high court selects cases and decides them.

William Traxler, chief judge of the federal 4th Circuit Court of Appeals in Virginia and a 1973 USC law alumnus, moderated the event, which took place in the School of Law auditorium and included a lively debate over the judicial philosophy of originalism.

“I am a proponent of what is called originalism, an approach to the Constitution that looks to the meaning that it had when the people adopted it,” said Scalia who was appointed to the U.S. Supreme Court by President Ronald Reagan in 1986. “To the non-originalist, it is the meaning we think it ought to have today.”

Breyer, appointed by President Bill Clinton in 1994, argued that the object of the Constitution “was to create a framework for a democratic government.” He said the writers wrote it with a level of abstractness that provided boundaries that would allow for changes in contemporary values. He referred to the Supreme Court justices as “the boundary police.”

First-year law student John Tamasitis said the justices’ open discussion about opposing approaches to interpretation underscores the civility that underlies U.S. rule of law.

Tamasitis knows the importance of rule of law more than most people. During two tours of duty with the U.S. Air Force in Afghanistan in 2008 and 2009, he worked to establish rule of law as a system of governance and fairness. He also saw how the struggle can result in division and death.

“Two justices from the highest court in the land demonstrated what it means to be able to disagree without being disagreeable,” said Tamasitis, a native of Philadelphia. “The system we have in the United States is so radically different from the rest of the world. We don’t even realize it. Without rule of law there would be no civilized society.”

Lauren Acquaviva, a third-year-law student from Homedale, N.J., said she enjoyed the justices’ banter over how to interpret the Constitution.

“People don’t see their deliberation. They assume it is a political process when it is not,” said Acquaviva, who wants to pursue a career in family law.

Acquaviva said she agrees with Breyer, who said he doesn’t think people want a Constitution that is frozen in the 18th century.

“Hearing how they make their decisions was very enlightening,” she said. “It was fascinating to hear him (Scalia) discuss originalism and how strict he adheres to it. I don’t think the founders intended for the Constitution to be static, but that it be a more fluid and changing document.”

Allison Humen, a third-year-law student from Annapolis, Md., said it was a valuable experience as a law student to hear the justices speak.

“In constitutional law we study judicial philosophies and the opinions of the U.S. Supreme Court, but to see the justices give their brief rundown on their approaches is an amazing and powerful opportunity,” said Humen. “Their interaction with one another perhaps is a glimpse into how oral arguments might go on at the U.S. Supreme Court. Seeing how cordial they are to each other was refreshing.”

The justices reminded the more than 400 students, faculty and alumni in attendance that the vast majority of cases – approximately 95 percent – are state law and that the vast majority of the 5 percent of cases the U.S. Supreme Court does hear, they agree upon.

Justices Scalia and Breyer’s visit to USC coincided with an appearance at the S.C. Bar Convention held this weekend. Their USC visit was made possible in part by Sen. Lindsey Graham, a 1981 USC law graduate who has played an instrumental role in the establishment of USC’s Rule of Law Collaborative.