Professor Stephanos Bibas’s lecture “Originalism and Formalism in Justice Scalia’s Criminal Procedure Jurisprudence” drew a sizable crowd to the law school Wednesday. Including commentary by Professor Richard Garnett, the Federalist Society talk provided insight into dynamics in the Supreme Court and Justice Antonin Scalia’s adherence to the legal concepts of originalism and formalism.
Having clerked for Justice Kennedy in 1997-’98, Bibas said the press mistakenly depicts a constant battle between liberals and conservatives in the Supreme Court. He offered some of Justice Scalia’s landmark opinions to defend his point, arguing that Scalia is often able to inspire a following across the extremely diverse political ideologies on the Court, including “liberal” Justices David Souter and John Paul Stevens. Bibas argued that the tension in some of these cases lies in ideological differences between Scalia and Justice Stephen Breyer.
Discussing Scalia’s use of originalism and formalism, Bibas explained originalism—the notion that the meaning of the Constitution is fixed at the time of ratification—as the “spinal column of American democracy,” in part because it protects juries. The bottom line, he said, is that rigidly following the originalist view is a disservice to the legal question at hand. Though Bibas argued in favor of what he sees as Scalia’s admirable and largely successful use of originalism and formalism, he acknowledged that “common sense and practicality still have a place in the judicial toolbox.” Bibas concluded, “Not three cheers but two for originalism and formalism.”