(updated below [Wed.])
On the day the death of Justice Antonin Scalia was announced, Georgetown Law School issued an official statement and press release headlined “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia.” It quoted the school’s dean, William M. Treanor, heaping unqualified praise on the highly controversial justice.
“Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,” Dean Treanor pronounced. “Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few justices have had such influence on the way in which the law is understood.” Moreover, “he cared passionately about the profession, about the law and about the future. … We will all miss him.” It went on and on in that vein.
That’s all well and good: If Dean Treanor revered Justice Scalia and his jurisprudence, there is no reason why he should refrain from expressing those sentiments. It’s a bit odd for the official statement of a major law school to depict Scalia as though he were some sort of universally beloved figure, but there’s nothing wrong with Dean Treanor personally advocating his viewpoint. That, after all, is one of the primary purposes of academic institutions: airing differing views and perspectives and vigorously debating them.
Two Georgetown law professors, Mike Seidman and Gary Peller, disagreed with Dean Treanor’s glowing assessment of Scalia and said so. That night, Seidman posted a brief email to the dean and faculty noting: “Our norms of civility preclude criticizing public figures immediately after their death.” As a result, said Seidman, “all I’ll say is that I disagree with these sentiments and that expressions attributed to the ‘Georgetown Community’ in the press release issued this evening do not reflect the views of the entire community.”
A full two days after Scalia’s death, Professor Peller wrote an email — first to the dean and the faculty, and thereafter to the entire law school — explaining his dissent from the dean’s praise. Like a huge number of Americans generally, and legal professionals particularly, Professor Peller viewed Scalia’s role on the Supreme Court as toxic in the extreme, and he explained why.
Professor Peller wrote that he was “put off” by the official statement praising Scalia, and that he “imagine[s] many other faculty, students, and staff, particularly people of color, women, and sexual minorities, cringed at [the] headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression, and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” He added that Scalia “was not a legal figure to be lionized or emulated by our students. He bullied lawyers, trafficked in personal humiliation of advocates, and openly sided with the party of intolerance in the ‘culture wars’ he often invoked. In my mind, he was not a ‘giant’ in any good sense.”
So far, so good: right? The Georgetown dean lionized Scalia as a “brilliant jurist” from whom we all learned so very much and whom we will “all miss,” while a law professor objected to that view and argued that Scalia was actually a destructive presence on the Court. That sounds to me like exactly the sort of debate that one should find at a major U.S. law school, the sort of debate thinking adults have on a daily basis. Vehement criticisms of Scalia have long been, and still are, commonplace; The New Yorker’s Jeffrey Toobin this week wrote that Scalia “devoted his professional life to making the United States a less fair, less tolerant, and less admirable democracy.”
But two conservative law professors on the Georgetown faculty are indignant that this debate took place at all. The right-wing duo, Randy Barnett and Nick Rosenkranz (a senior Rubio adviser), sent their own email denouncing Peller’s anti-Scalia statement: not on substantive grounds that he was wrong on the merits about Scalia, but insisting that he had no right to criticize Scalia at all.
They began with an incredibly petty accusation that Professor Peller broke the law school’s rules in posting his statement; it was, they said, “in violation of the stated policies governing such emails.” By contrast, the two professors boasted, they “sought and received permission to post this response in an attempt to remedy the harm caused by the initial breach of our norms.”
After they each recounted fond personal memories they shared with Justice Scalia (“We had lunch together at his favorite pizza place, AV Ristorante. … We once sang a song together, believe it or not: Oh, Danny Boy”), they jointly moved to the crux of their grievance: It was “simply cruel beyond words” to subject these two professors to criticisms of their beloved hero. They literally said that:
To hear from one’s colleagues, within hours of the death of a hero, mentor, and friend, that they resent any implication that they might mourn his death — that, in effect, they are glad he is dead — is simply cruel beyond words.
They added, “But, though the insult and cruelty of our colleagues was grievous, at least only two of us had to bear it.” We had to bear it.
The real tragedy took place when Professor Peller decided that not only Georgetown law professors but students as well should be subjected to the unimaginable cruelty of reading his Scalia critique. You just have to read what these two law professors wrote to believe it:
Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are 22-year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams? …
Sadly, as just two professors on a faculty of 125, we are in no position to offer much reassurance to our students, beyond reporting that we have heard on the faculty email list, and privately, from a few of our Georgetown colleagues who objected to these messages. All we can do, really, is convey our solidarity with our wonderful students. We share your pain. We share your anger. We stand with you. You are not alone. Be strong as Justice Scalia was strong. Remember, he heard far worse about himself than we have, and yet never wavered in both his convictions and his joy for life.
But make no mistake: Civil discourse at Georgetown has suffered a grievous blow. It is a time for mourning indeed.
Beyond this remarkable display of condescension to “22-year-old 1Ls” who apparently cannot hear criticisms of public officials they like, and beyond the flamboyant and bottomless self-pity, the two right-wing professors called for official “remedies” to be imposed by the dean. Citing the widely debated controversy at Yale last year, they wrote that having to endure criticisms of Scalia is “clearly the most grievous imaginable macro-aggression against all conservative students and faculty.” As a result, they argued, “this incident calls for remedies at least as substantial” as the ones imposed at Yale, “and an equally powerful statement” from the dean denouncing the “micro-aggression.”
These two conservative professors are not ironically invoking a caricature of left-wing PC “safe space” rhetoric in order to ridicule it. They clearly really mean what they have written; they believe that they and conservatives students have been brutalized and victimized by hearing criticisms of Antonin Scalia; and they are seriously demanding “remedies” be imposed to punish the offending professor.
The significance of this goes far beyond what New York’s Jesse Singal correctly describes as two conservative professors “adopting campus lefty-speak in the service of a conservative argument.” Singal is right that their argument is grounded in “a particularly high-strung idea about dissenting views [that] has taken hold: namely, that dissenting views on hot-button issues don’t just lead to bad policy but actually do psychological harm to students who are exposed to them, or even exposed to the knowledge that they are being expressed somewhere on campus.” As David Perry notes, Georgetown Law’s Black Law Students Association did quickly note the glaring irony.
For some reason, national pundits who love to denounce “PC” campus censorship and parade around as free speech crusaders obsessively focus on left-wing censorship while ignoring other kinds of campus viewpoint-suppression that are far more common. As I’ve documented repeatedly, the most common form of campus censorship — punishment and other official limitations imposed on activists working against Israeli occupation of Palestine — is almost always completely ignored in this pundit debate.
Indeed, it’s common for those seeking to suppress left-wing views on college campuses to invoke exactly the same “safe space” rhetoric. As we noted last week in reporting on the growing criminalization of the BDS movement, the University of Illinois student who led the campaign to have Steven Salaita fired for his pro-Gaza tweets, himself a former AIPAC intern, told the New York Times when justifying this campaign: “Hate speech is never acceptable for those applying for a tenured position; incitement to violence is never acceptable. … There must be a relationship between free speech and civility.” Another “pro-Israel” student demanding Salaita’s firing said, “It’s about feeling safe on campus.” This is seen over and over: “PC” censorship is almost always depicted as a left-wing phenomenon even though it is directed at least as commonly at the Left as it is wielded by them.
But what this Georgetown Law controversy even more strongly illustrates is how and why the “etiquette” rule against speaking ill of a recently deceased individual is so wildly inapplicable, and so dangerous, when it comes to influential public figures. As I’ve written before in the context of the deaths of Margaret Thatcher, Ronald Reagan, and Christopher Hitchens, this “rule” — that one is allowed only to express praise and admiration for a public figure who dies but not criticism or dissent — is a recipe for unchallenged propaganda. Manipulative commentators exploit this post-death period to create unearned, baseless hagiography of these influential actors, and that hagiography is then consecrated and endures as Truth because nobody is allowed to dissent from it — because doing so is deemed gauche, uncivil, indecent, and “cruel beyond words.”
It is extremely consequential how the legacy of Scalia’s jurisprudence is understood. That understanding will affect all sorts of vital decisions in the future, from new court appointees to the methods used to understand and apply the law. This rule that dictates that only praise but not criticism of Scalia can be expressed — under the guise of “etiquette” and “decency” — is a deceitful tactic for winning an important public debate without having to actually engage the arguments.
We’re not talking about Scalia, the Friend, or Scalia, the Grandfather. Virtually none of us knew him in those roles. We’re talking about Scalia, the highly polarizing, highly controversial Supreme Court justice whose actions and beliefs affected the lives of millions of people. We’re not guests at his family’s house for a wake. We’re citizens shaping how he and his public actions will be understood and remembered and perceived. Trying to suppress any criticisms of him, so that only adulation can flourish, is worse than irrational; it’s propagandistic.
That doesn’t mean one should express glee that Scalia is dead, nor does it mean that if one is a family friend of his relatives that one should spout criticisms in their grieving faces. But it most certainly does mean that from the moment public adulation of someone like this is permitted, so, too, must criticisms of him be permitted. That is especially true at an academic institution devoted to the study, practice, and debate of law. To insist that only one side is permitted to be heard — the side that hails Scalia as a benevolent genius — is as oppressive and anti-intellectual as it gets.
So, yes, by all means, we should be mocking these right-wing professors for invoking the most extreme and dubious version of the “safe space” rationale that dictates that adult students must never be exposed to arguments they find upsetting. But, more importantly, we should realize the actual game that is being played here: to distort public discourse on highly consequential matters by banning dissent on the grounds that it is “cruel,” “traumatizing,” and “uncivil.”
UPDATE: Professor Barnett, in a discussion with me on Twitter, insists that when demanding “remedies” similar to what were granted at Yale, the two professors merely wanted Georgetown Law’s Dean to take steps to increase diversity on the faculty, not formally prevent criticisms of Scalia being expressed. At the very least, this seems unclear, given that they accused Professor Peller of violating the rules of the law school with his email and noted that if anyone had similarly criticized Thurgood Marshall upon his death “the Georgetown reaction would justly be swift, dramatic, and severe.”
I also asked him about the suggestions made by some (which I did not believe) that they were insincere in their statements, and were just ironically invoking left-wing “trauma” rhetoric in order to mock it. Professor Barnett insists that they were indeed sincere in their statements, and I believe him: