The Supreme Court, Justinian, and Antonin Scalia: Twenty Years in Retrospect

I. Columbus Day, 1986, Address to the American Justinian Society of Jurists

Judge Durante, Justice Calogero, Judge Marullo, Your Honors, Ladies and Gentlemen:

Years ago my quest for treasure among used books turned up Piero Calamandrei's Eulogy of Judges. You may know Calamandrei was an Italian lawyer and a teacher of civil procedure. His Eulogy of Judges is a psalm book of uncommon legal prayer, from which I should like to read two verses. Take these words as my heartfelt greeting to the judges of the American Justinian Society of Jurists. You honor New Orleans and Louisiana by your presence.

Calamandrei's words, of course, were directed to his native Italian judges; I borrow them in welcoming this country's Italian-American jurists to Louisiana:

I cannot meet abstract law on the path I take as a man among men in society . . . but many times do I find you, O Judge, the corporeal evidence of the law, on whom depends the fate of my worldly goods . . . . When I meet you on the road and bow to you with reverence, there is a sweetness of fraternal gratitude in my greeting. I know you are the keeper and guardian of those things I hold most dear; in you I greet the peace of my hearth, my honor, and my liberty.

Now to my topic: "The Supreme Court, Justinian, and Antonin Scalia."

It struck me that Your Honors might be curious about our civil law in Louisiana, about its origins in the recesses of Roman law, and about your Society's namesake Justinian. I know the Supreme Court well enough to venture a few words about it in public. As for Antonin Scalia, he has been on all our minds of late.

First, a few words about Bowers v. Hardwick, the recent Supreme Court opinion sustaining Georgia's sodomy statute.

Those of you who follow the Court know that last July, the month in which America celebrated the centennial of the Statue of Liberty, the Supreme Court affirmed the constitutionality of Georgia's sodomy law. The vote was close, 5 to 4, much closer, I suspect, than most prognosticators would have guessed.

Chief Justice Burger's special concurring opinion in the Georgia sodomy case cites the Digest of Justinian and Code of the Emperor Theodosius in support of Georgia's sodomy law. The Digest, you will recall, was the centerpiece of Justinian's temple of the law, the Corpus Jurus Civilis, which was completed well over a thousand years ago, through the labor of Tribonian and a battalion of jurists, in 534 anno domini.

Citing the Digest is a rare thing for a Supreme Court opinion, although not unprecedented. One may naturally wonder whether Justinian is a proper source of contemporary American constitutional law.

I tell you these things by way of an introduction to my remarks. I want to talk to you about two subjects that fascinate me as a law teacher in Louisiana. One is the law of the Corpus Jurus Civilis, represented by the figure of Justinian. The other is the law of the American Constitution, represented by the figure of Antonin Scalia.

These two figures came face to face one week ago today, in the Supreme Court building, when Justice Scalia took his judicial oath of office. Doubtless it was a silent encounter. Some of you may know that Justinian is one of the great law-givers frozen in marble on the north wall of the courtroom. I am sure Justinian never entered Justice Scalia's mind, which was probably focused on his new responsibilities, the highest that can weigh on an American judge.

My speech is divided into two parts. First, I want to take you on a horse and buggy tour of the Roman Quarter of Louisiana's legal system. Second, I will assess two of Antonin Scalia's judicial opinions, written on the District of Columbia Circuit, against Senator Pastore's measure of expected performance from Italian American judges. Said the Senator: "The Italian American judge to be considered equal must be twice as good as the next judge." Justice Scalia, you will hear me affirm, will prove a surpassing Supreme Court Justice. The marks are already there, in the federal reports. Along the way, I hope to show that the law of the Corpus Juris and the law of the American Constitution are at once both strikingly different and remarkably the same.

I

Now, I assume you know we have a Civil Code; Louisiana is what we call a "civilian jurisdiction." This much about us was circulated pretty widely by Stanley Kowalski in Tennessee Williams's A Streetcar Named De...

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