Neil Siegel

  • March 22, 2017
    Guest Post

    by Neil Siegel, David W. Ichel Professor of Law and Professor of Political Science, Co-Director of the Program in Public Law, and Director of the DC Summer Institute on Law and Policy, Duke University School of Law

    In the summer of 2011, Justice Scalia taught a separation of powers course in Duke Law School’s summer program in Geneva. I was honored to serve as his assistant, which meant that I answered his questions in class and—more importantly from his perspective—wrote and graded his exam.

    On the last day of class, Justice Scalia gave what Court watchers have come to regard as his originalism “stump speech,” in which he essentially argued that one is either an originalist on matters of constitutional interpretation or else one is making it up. When he was done, he asked for critical responses from anyone in the class, including law professors. (He was exemplary about hearing other points of view and generous in many other ways.) Because he was looking right at me when he asked for pushback, I raised my hand.

    I had a feeling that he was expecting me to criticize originalism as descriptively inaccurate and/or normatively unattractive. I declined the opportunity. Instead, I decided to (gently) criticize him in the form of a compliment. I told him and the class that he was way too sensible to be just an originalist. Rather, I suggested (using plentiful examples) that he was indeed an originalist some of the time, but that he was also a traditionalist, and a structuralist, and a doctrinalist, and—because he had to decide when to be what—a prudentialist. In short, I implied that he was a living constitutionalist.

    When I was done speaking, Justice Scalia paused, thought for a moment, and responded that maybe he needed a new word for what he was. I replied, “How about a judge?”  (I dared not say “living constitutionalist.”) He laughed, paused again, and returned to his stump speech.

  • November 5, 2012

    by Jeremy Leaming

    As noted in a Nov. 2 piece for The Huffington Post by ACS President Caroline Fredrickson, the make-up of the nation’s top court rests on tenuous ground – with one more conservative justice helping its conservative bloc turn the clock back on longstanding precedent protecting an array of rights, such as reproductive rights.

    Fredrickson notes, “As recently as 2007, the Court upheld burdensome restrictions on abortion rights in Gonzales v. Carhart,” and that a “more conservative Court “could easily further restrict women’s reproductive rights, chipping away at Roe v. Wade or undoing it altogether.” (Fredrickson’s post notes the recent ACS paper, “Courts Matter: Justice on the Line,” which provides numerous examples of Supreme Court precedent that could be fundamentally altered with the change in the make-up of the high court.)

    Duke School of Law Professor Neil S. Siegel, also in a piece for The Huffington Post, zeroes in on the importance of the Supreme Court’s role in protecting or eviscerating reproductive rights. Siegel, also co-director of the Program in Public Law at Duke’s law school, writes how close the high court, in the past, has come to overturning the landmark Roe v. Wade. In the 1992 Planned Parenthood v. Casey, Justice Anthony Kennedy had narrowly joined the majority in upholding Roe. But since Casey, Siegel continues, Kennedy “has voted to uphold abortion-restrictive regulations that deny pregnant women the safest method of abortion in medical emergencies.”

  • July 22, 2009

    In a recent letter to the editors of the Washington Post, Reva Siegel of Yale and Duke's Neil Siegel defended Justice Ruth Bader Ginsburg against a recently published op-ed allegedly mischaracterizing her beliefs:

    Michael Gerson's op-ed suggest[ed] that Supreme Court Justice Ruth Bader Ginsburg or her associates believe Medicaid should cover abortion services to control the population of "social undesirables," to use Mr. Gerson's term ["Justice Ginsburg in Context," July 17]. We find the claim incredible, as would anyone acquainted with Justice Ginsburg's work who is not out to damage her reputation. 

    Ms. Siegel is the co-editor of the recently released The Constitution in 2020. Mr. Siegel, who clerked for Justice Ginsburg, offered his insights in the latest ACSblog symposium "Sotomayor's Confirmation Hearings."