By Errol Castens
OXFORD – Antonin Scalia is the U.S. Supreme Court’s most outspoken “originalist” while Elena Kagan is a former Harvard Law dean who argues for “flexibility” in interpreting the Constitution.
The two associate justices, however, enlightened and delighted a full house Monday at the University of Mississippi’s Ford Center with their perspectives, their wit and their obvious enjoyment in sharing the stage with each other.
The occasion was the annual James McClure Memorial Lecture in Law, but rather than a literal lecture, the 90-minute presentation was a conversation. Scalia has visited Ole Miss in the past, but this was the first time two sitting Supreme Court justices have visited together.
“In some ways, this is a product of the amazing alums that the law school has and the fact that our alums were able to say to the justices, ‘Would you both come?’” said Matthew Hall, senior associate dean of the law school. “Connections between some of our alums and the court made this happen.”
It was the warm collegiality and complimentary remarks that seemed to stand out during the justices’ talk.
“You all have to be able to appreciate all the strengths your colleagues bring to the table,” Kagan said. “(Scalia is) funny and charming and superintelligent and witty, and I always learn stuff from him, and I always enjoy it.”
Their often-opposing judicial philosophies even formed as a foil for their humor.
“If I had to pick someone for President Obama to appoint, you’re the best,” Scalia told Kagan, a former U.S. Solicitor General. He added, “Elena was a fabulous dean. … She is not an originalist, but when she was dean, she appointed three originalists to the faculty.”
Recalling that “bad blood” ran between a few justices shortly before Scalia was appointed to the court by President Ronald Reagan in 1986 – mostly notably between Chief Justice Warren Burger and Associate Justice Harry Blackmun – he noted the collegial spirit that has ruled since.
“I’ve been fortunate to sit on a court where there was no personal animosity,” Scalia said. “If you can’t disagree on the law without taking it personally, get another job.”
When Associate Dean Jack Nowlin, the moderator of Monday’s conversation, asked about cases that may have left either with a bitter taste, both justices deflected the question.
“Nothing particularly sticking in my craw,” Scalia said.
Kagan added, “I’m happy. We’re taking a pass on that one.”
Spurred by Nowlin’s questioning, both reflected on predecessors for whom they have particular admiration.
Scalia’s heroes were trailblazers.
“John Marshall set it all up,” he said, noting Marshall created the system of majority and dissenting opinions in contrast to the English system of opinions by each judge, so consensus was often unreached. The American system, he added, allowed for “opinions with humanity in them.”
“If you want to talk about modern judges – I actually sit in his chair – Robert Jackson,” Scalia added. “A great lawyer, a great justice. He never went to law school. He wrote like an angel.”
Kagan professed her greatest respect for William Brandeis, whose seat she occupies, and Thurgood Marshall, the first black Supreme Court justice and a giant in civil rights law, for whom she served as a law clerk.
“He was one of the greatest storytellers of all time, and he had great stories to tell,” she said. Noting that he tried several historic cases – and sometimes faced death threats – Kagan added, “He had lived a life.”
Nowlin asked each what they hoped to have as a legacy.
“I’ve never been big on my legacy,” said Scalia, who, at 78, is the second-oldest active justice. “The things I care most about are textualism … and originalism. To the extent that I have advanced either of those courses, I am happy.”
Kagan, 54, could well serve decades yet.
“I try to think about learning from the lawyers, from my colleagues, from doing the job itself,” she said, adding that she hopes most to “maintain a lot of honesty in the way I interpret the law.”