“America” the beer vs. “Scalia” the law school: Guess who's losing the name game?

Posted on 05-13-2016 by
Tags: Industry Insights & Trends , Top Stories


Update: George Mason law school faculty strongly in favor of the Scalia name

Budweiser® is temporarily renaming its beer “America” to “inspire drinkers" to celebrate … well, America. Despite the subtle nod to patriotic drunkenness, the change has yet to pit drinkers against teetotalers, Americans against Canadians, good ol' boys against hipsters.

In terms of divisiveness, the name “America” is a pretty safe bet. Good thinking Budweiser®! Better “America” than something controversial like “Scalia, The King of Beers.”* 

The late Justice Scalia was a polarizing figure, and postmortem, his name continues to create division. In attempting to rename its law school after Scalia, George Mason University has created an ongoing controversy.

Part of the controversy is farcical; the initial name, Antonin Scalia School of Law, produced the unfortunate acronym, ASSOL. A change to Antonin Scalia Law School fixed this, but the controversy didn’t end.  There’s still a funding question; also, George Mason’s faculty senate has balked at Scalia’s decisions involving historically marginalized groups. The controversy has ignited some heated back and forths.  

Part of the Scalia backlash is ideological. As the Washington Post wrote:

But university officials aren’t fooling anyone if they contend that naming the school after such a polarizing figure doesn’t give it an ideological brand.

….

But adopting Scalia’s name makes a statement about the school that could have long-term implications for the type of students who apply and whether alumni decide to give.

I lean towards the Scalia side, not because I’m a Scalia fan but because all Supreme Court opinions are inherently and unavoidably marginalizing – somebody wins, somebody loses. At the Supreme Court level, an individual or group is always cut off from some right or redress.

If marginalization, or the lack thereof, was the criteria for law school naming, there’d be no Sandra Day O'Connor College of Law (Arizona State), no Thurgood Marshall School of Law (Houston), no Louis D. Brandeis School of Law (Louisville). All great justices, but all marginalizing to some degree. Tethered to every O'Connor, Marshall and Brandeis opinion – a winner and a loser (or group of losers).

Ideally, this marginalization should be vindicated by sound/unbiased legal reasoning. However, justices are human beings and prone to personal preferences. Consequently, their opinions, while legally sound, are often wrapped around an unbiased, ideological core.

All political legacies, even those of our Supreme Court justices, are inherently ideological. If neutrality is the litmus test for law school naming, all justices must suffer the same fate as Scalia.

Disagreeing with Scalia’s ideology shouldn’t devalue his accomplishments as a justice and legal scholar. The same for Justices Roberts, Ginsburg, Sotomayor, etc. When ideology is a barrier to legal greatness, there can be no great lawyers, judges or justices. Greatness can, and should, be divisible from ideology. In assessing Scalia, I agree with Ángel Cabrera, George Mason’s President., who said:

If someone who served our country for 30 years at the highest level — and who is considered by experts of diverse political leanings as a great jurist who had a profound effect on the legal field — is not good enough to be recognized this way, I wonder who would be.

"Who would be?" Cabrera asks. Would George Mason himself be good enough?

Mason is deservedly honored as a Founding Father and proponent of individual rights. But does he pass ideological muster? As an Anti-Federalist, his ideology pitted him against our Constitution. In fact, Mason, along with Elbridge Gerry and Edmund Randolph, holds the dubious distinction of refusing to sign the Constitution. As Mason famously said:

[I would] rather chop off my right hand than put it to the Constitution as it now stands.


Viewed in a bubble, Mason’s ideology can be defined as “anti-Constitution.” It’s a one-dimensional story, but as told, Mason, as antagonist to our Constitution, can easily be branded “un-American.”

Ridiculous? Heck yeah!**

But equally ridiculous: defining our Supreme Court justices solely by marginalization and/or ideology. If we do so, then we have to face facts - they all play favorites, they all choose a team. The squeaky clean justice suffers a quick death; judicial corruption becomes the standard.

Again, I don’t default to the Scalia fan base. Our opinions differed on certain issues … affirmative action and disability rights, for instance. But if my personal leanings formed the yardstick for greatness, no baseball player would ever equal Mickey Mantle, DiCaprio would always trump Clooney, and Pearl Jam would be the only radio-worthy band.

Oh, and the name “America” … I’d probably give that to Shiner, not Budweiser®.

 

*I would’ve also accepted “This Trumps for You.”

** Maybe not so ridiculous. Alexander Hamilton launched a similar assault upon Thomas Jefferson, who, in a letter, attempted to undermine the Constitution's ratification. Hamilton said this meant that "Jefferson was in origin opposed to the present Constitution." In the biography, James Madison: A Life Reconsidered, Lynne Cheney sums up the attack:

By conflating opposition to government measures with opposition to the Constitution, Hamilton was at once reflecting the widely held view that government was above party and calling Jefferson disloyal. 

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