Despite differences, Harvard professor Lawrence Lessig praises Antonin Scalia
Lessig was Scalia’s ‘token liberal’ clerk in the 1990s.
Lawrence Lessig, a Harvard Law School professor and liberal activist, and Antonin Scalia, the late conservative and originalist Supreme Court justice, would not be described as political allies.
But Lessig had nothing but praise for Scalia, who died Saturday at the age of 79, when it came to the man’s principles in a USA Today op-ed Wednesday.
The iconic Internet and political activist wrote that Scalia almost always stuck to his originalist Constitutional philosophy, even when the interpretation did not result in his political interest.
“Whether perfectly or not, what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right,’’ Lessig wrote, crediting Scalia’s “acts of integrity’’ for some of his own development as a lawyer.
During the early 1990s, Lessig was a clerk for Scalia, who was himself appointed to the Supreme Court in 1986.
“He hired me as what he used to call his ‘token liberal clerk,’’’ Lessig said in a recent WGBH interview. “He encouraged that kind of argument inside the chamber.’’
Despite their political differences, Lessig wrote that Scalia set an example that other self-avowed originalists could take notice of.
“We need a clearer way to call out inconsistent originalism, or as Scalia called it, an ‘originalism of convenience,’’’ Lessig wrote, adding that he doesn’t see an obvious originalist argument for how Texas Sen. Ted Cruz, who was born in Canada to a American mother, could be eligible to be president.
Fellow Harvard Law School professor Lawrence Tribe recently brought up the same argument in a Boston Globe article, using Cruz’s own originalist logic against him.
Lessig also noted that nowhere in the Constitution does it say that the president should not nominate judges to the Supreme Court during the last year of his term, a reference to some Senate Republicans who argue otherwise.
“We don’t expect the same consistency from politicians as we do from judges,’’ he wrote. “But when they invoke the Constitution, I think we should.’’
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