10/21/16 Richard Fallon Harvard School of Law
Posted by Julie L'Heureux
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Our guest speaker, Law Professor Richard Fallon Jr., was introduced by Rotarian David Clough.
(Photo: David Clough, Professor Fallon and President Laura Young.)
Dick Fallon is an Augusta, Maine native and Cony "Rams" High School graduate, where he played high school basketball for the Rams. His basketball experience came in handy when Fallon was interviewed for a position as a law clerk with the United States Supreme Court. When he was interviewed by Justice Byron White, a former football player and avid basketball fan, he tested him by unexpectedly throwing a basketball to him during the interview. Although Fallon didn't work for Justice White, he did get the job, with Justice Lewis Powell.
Professor Fallon spoke about the work of the Supreme Court. He explained, right now, the Supreme Court is in a "holding pattern," because of the death of Justice Antonin Scalia (who died in February), and waiting for the Senate to approve Judge Merrick Garland or someone else. As a result, the court agreed to hear fewer important cases than usual. In his review, Professor Fallon sought to put the Supreme Court in perspective.
He emphasized, however, that the Court's role is limited to ruling on only a few of the most important issues that the nation confronts. For example, the Supreme Court has almost nothing to do with the nation's economy or "to build, or not to build, a wall." Moreover, the Supreme Court justices vastly agree more than they disagree on the issues. Because the justices generally agree that the lower courts have applied the proper legal frameworks to decide cases, they normally agree to review only about 70 cases per year, out of about 8,000 in which their review is sought. Even in those cases that the court agrees to hear, they rule unanimously 40 percent of the time. Moreover, the justices tend to reach consensus over time on issues that once divided them.
Professor Fallon sought to explain some of the issues where the justices disagree, like they do about women's access to abortion and about gun rights. He said that disagreement is not always between justices who try to rule based on original intent and those who believe in a living constitution. An example comes from the Second Amendment, which guarantees a right "to keep and bear arms." In interpreting the Second Amendment, all of the justices agree that history matters, but, they disagree about what history shows. Five of the justices have concluded that the Second Amendment was originally understood to protect a private right to keep guns for self-defense. By contrast, the four dissenting justices in the Court's most important case thought that the history showed that the right to bear arms is connected with service in a "well-regulated militia," to which the Second Amendment specifically refers.
The justices tend to conclude that historical evidence supports conclusions that they think wise, sound, or desirable. Yet, while all of the justices try to decide some cases in accord with the Constitution's original meaning, all of the justices also believe it is sometimes important to follow prior rulings, or what some lawyers call "precedents." Nevertheless, all of the justices think that some precedents should be overruled. Although lower courts are supposed to follow Supreme Court precedents, the court sometimes uses test cases to reverse its own prior conclusions.
In a response to a question about the Senate approval to seat a replacement for Justice Scalia, Professor Fallon said it is possible for the Senate to withhold voting on future nominations, although doing so would not be in the spirit of cooperation intended in the Constitution.
He emphasized, however, that the Court's role is limited to ruling on only a few of the most important issues that the nation confronts. For example, the Supreme Court has almost nothing to do with the nation's economy or "to build, or not to build, a wall." Moreover, the Supreme Court justices vastly agree more than they disagree on the issues. Because the justices generally agree that the lower courts have applied the proper legal frameworks to decide cases, they normally agree to review only about 70 cases per year, out of about 8,000 in which their review is sought. Even in those cases that the court agrees to hear, they rule unanimously 40 percent of the time. Moreover, the justices tend to reach consensus over time on issues that once divided them.
Professor Fallon sought to explain some of the issues where the justices disagree, like they do about women's access to abortion and about gun rights. He said that disagreement is not always between justices who try to rule based on original intent and those who believe in a living constitution. An example comes from the Second Amendment, which guarantees a right "to keep and bear arms." In interpreting the Second Amendment, all of the justices agree that history matters, but, they disagree about what history shows. Five of the justices have concluded that the Second Amendment was originally understood to protect a private right to keep guns for self-defense. By contrast, the four dissenting justices in the Court's most important case thought that the history showed that the right to bear arms is connected with service in a "well-regulated militia," to which the Second Amendment specifically refers.
The justices tend to conclude that historical evidence supports conclusions that they think wise, sound, or desirable. Yet, while all of the justices try to decide some cases in accord with the Constitution's original meaning, all of the justices also believe it is sometimes important to follow prior rulings, or what some lawyers call "precedents." Nevertheless, all of the justices think that some precedents should be overruled. Although lower courts are supposed to follow Supreme Court precedents, the court sometimes uses test cases to reverse its own prior conclusions.
In a response to a question about the Senate approval to seat a replacement for Justice Scalia, Professor Fallon said it is possible for the Senate to withhold voting on future nominations, although doing so would not be in the spirit of cooperation intended in the Constitution.