Ever since Supreme Court justice Antonin Scalia died, there’s been widespread debate over the proper way to reflect on his legacy, given that many progressive-minded people — up to and including not particularly radical figures like Jeff Toobin — believe that that legacy was rather harmful. Critics of Scalia pulled few punches in the days following his death, which generated a fair number of complaints about the propriety of speaking ill of the recently deceased.
At Georgetown University, Scalia’s undergrad alma mater, a really interesting version of that debate is unfolding — and it’s flipping a lefty campus-activist trope on its head. Conservative students, two law professors at Georgetown Law are arguing, have become “traumatized, hurt, shaken and angry” by one professor’s anti-Scalia opinions.
As Scott Jaschik reports at Inside Higher Ed, the dispute began when both the law school and the main university sent out mass emails mourning Scalia’s death and highlighting his past visits to the school (hat tip to Twitter user @lessdismalsci for bringing this story to my attention). Law professor Gary Peller responded by sending out his own mass email in which he wrote that he imagined “many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline [sic] and at the unmitigated praise” of Scalia in the university statements. Peller said that the former justice “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.”
Naturally, Peller’s mass-email reply provoked a mass-email-reply reply, this time from Randy Barnett and Nick Rosenkranz, two law professors with a very different view of Scalia’s legacy. In addition to arguing, in rather lawyerly fashion, that Peller’s email had violated school rules (they went through the proper procedure before sending theirs, they explained), Barnett and Rosenkranz attempted to raise awareness about what they saw as the potentially devastating impact Peller’s email could have on the tender developing psyches of Georgetown Law’s conservative students.
They argued that the Peller email had a damaging impact on free exchange at the law school. They said that Peller’s email insulted and scared students who are fans of Scalia by saying “in effect, your hero was a stupid bigot and we are not sad that he is dead.”
Barnett and Rosenkranz continued, “Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two-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?”
They closed their email, which is available here, by saying, “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.”
What’s fascinating is the way Barnett and Rosenkranz are adopting campus lefty-speak in the service of a conservative argument. After all, while some of the concerns about “trigger warnings” and fragile college students are overstated, it’s undeniably true that within a segment of the campus left, a particularly high-strung idea about dissenting views 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.
Barnett and Rosenkranz seem to be trying to tap into this idea with their encouragement of students to stay strong in the face of “pain” and “anger” and “traumatization” at … one professor’s email. Whereas a “traditionally” conservative argument against criticizing Scalia would likely invoke the concept of respect for hallowed institutions like SCOTUS, or the norm of not speaking ill of the recently deceased, these law professors seem to be offering up an argument more tailored for the campus environment of 2016.