As a witty, staunch defender of the Rule of Law and limousine lecturer to America's finest law schools (now more than 200 locations!), he will be irreplaceable and greatly missed. The nation now faces a political stand-off in replacing him. President Obama has already announced his intent to nominate a replacement for Senate consideration. Meanwhile, Senate Republicans have already decided (over a weekend, no less!) that the next Supreme Court appointment should be made by the next President, preferring the Donald Trump dice-roll to a former constitutional law professor. Let us all hope that a compromise candidate is named and America be blessed with the next Anthony Kennedy.
Such political maneuvers, though, are not our focus on this blog. Instead, we celebrate Scalia's contributions to legal education beyond his annual tour. In Scalia's view, legal education didn't teach much, but was invaluable as a three-year sorting function for separating gods and clods:
By and large, I’m going to be picking [clerks] from the law schools that basically are the hardest to get into,” Scalia said. “They admit the best and the brightest, and they may not teach very well, but you can’t make a sow’s ear out of a silk purse. If they come in the best and the brightest, they’re probably going to leave the best and the brightest, O.K.?Words that will live on. In an age where people are constantly wanting law schools to teach "practical" skills, Justice Scalia understood that the purpose of law school is not to be schooled in law, but to acquire a stamp on one's curriculum vitae to certify genuine intellect and societal worth. The Supreme Court, with its grand tradition of well-reasoned opinions that guide the nation's legal superstructure, depends not on practitioners with real-world abilities, but rather on an endless conveyor belt of Harvard and Yale graduates to pontificate, that innate skill held by elitists who clearly earned every promotion that they were quickly given.
It doesn't take real-world skills to write twenty pages that punt the most important issues in a case; it takes pedigree. Justice Scalia understood this concept. Sure, nothing stops a 174 LSAT from staying home and going to Florida State or Colorado, and nothing stops Georgetown from admitting total nincompoops and laughing about it in the faculty lounge. But to use that sort of "logic" would jeopardize the Rule of Law, if not America.
Law schools simply aren't designed to teach. They weren't designed to do so in the 60s and therefore they shouldn't be amended to do so now. Their purpose is to let silk purses be silky and sow's ears to be sow-y. Such a stable system provides the public with confidence that their legal sector is well-maintained, enforcing a stable framework where words like "Harvard Law School" and "AV Preeminent!" mean something dating back to Thomas Jefferson, all to preserve the almighty Rule of Law.
Reform, then, is not only superfluous, but potentially dangerous. If you enforce some sort of useful pedagogy or merits-based consideration, even for a minority of schools, it may set a troubling trend where the best and the brightest may not leave the best and the brightest. While we at the LSTC encourage law school experimentation as a cheap marketing exercise to rubes, to have the ABA or any other regulatory body make substantial changes to law school imperils the natural order and would undermine the Rule of Law.
So the best way to celebrate Justice Scalia's legacy would be to maintain the status quo: a system where our nation's best and brightest pay a hefty sum to take a three-year study vacation that teaches them little outside a selection of pleasant, antiquated writings and pseudo-philosophical conversations where windbags blow past each other. Then, they would stride into good jobs where they then learn the actual craft of law as relevant to their station. Recycle graduates of the most prestigious institutions for the top positions and leave the remainder of law schools to educate those who will serve the grossly under-served remainder of the population.
Sicut erat in principio, et nunc, et semper, et in saecula saeculorum. Amen.