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Tuesday, October 06, 2009

Scalia Lacks a Certain Originalism


Fellow guest-prawf Chris Lund, in a post Friday, pointed to some interesting remarks made by Justice Scalia – namely his worry that society may be “devoting too many of our very best minds” to the legal profession.

What struck me most about Scalia’s observations was how closely they mirror those made by yours truly in a PrawfsBlawg post from March 2008: “Are Law Students Too Smart?”

I’m not sore that Scalia didn’t credit me. And I’m not going to brag that Scalia is out trolling my old blog posts for intellectual fuel. Hey, you don’t need me to tell you that the nation’s highest court constantly relies on PrawfsBlawg for leadership in legal thought.

But I do have a gripe. And it’s this: When I posted “Are Law Students Too Smart?”, I got roundly flamed. Six comments – none concurring. But lo-and-behold, when Scalia says it, suddenly people get on board. On PrawfsBlawg, two out of the six comments were supportive. And on the Wall Street Journal Law Blog, there was an explosion of accolades: 

“What a brilliant comment … ”

“Spot on.”

“Scalia is once again way on to something.”

“This is probably the only time I would agree with Scalia.”

“Scalia is absolutely correct.”

“Scalia bats another one out of the park.”

Hmmm. Well, I can’t wait to see the kudos foisted on Scalia when he gives the Constitution a grade of B-minus.

Posted by Eric E. Johnson on October 6, 2009 at 02:44 PM | Permalink


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Mickey to Rocky (in Rocky I):

what I'm tellin' ya -- Ya
shoulda seen the night in
Brooklyn, I smacked 'Ginny'
Russo outta the ring, September
14, 1923 -- same night Firpo
knocked Dempsey outta the ring.
But who got the Press? He did.
He had a manager -- September
14, 1923.

Kid, you need management.

PS Very funny post.

Posted by: Howard | Oct 6, 2009 8:14:08 PM

The title alone of this post made it worth reading --it was great! You're a funny guy, Eric.

Posted by: Chris Lund | Oct 6, 2009 6:24:45 PM

I wouldn't take it personally. My sense is that many (possibly even most) law commentators have a huge crush on Scalia. I think this results from his distinctive personal style, most notable for his willingness to cut down those who disagree with him openly and with wit and verve. Some term this brilliance, others intellectual bullying. But what seems different about commentary about Scalia is how even critics seem obligated to couch their disagreement in deferential language acknowledging his purported brilliance (a signal, perhaps, that they fear being flamed by the Justice). For my part, I agree that he's a very smart and rhetorically capable jurist, but I'm not sure that he is any greater or lesser on this front than his colleagues on the Court. In other words, I think the Scalia love/hate cult of personality is a product more of personality than substance.

Posted by: Dave | Oct 6, 2009 4:41:24 PM

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