Yesterday I had the honor of attending the re-naming ceremony for the law school at George Mason University in Arlington, Virginia (about 20 minutes from my home) -- now known as Antonin Scalia Law School. Among the speakers was Justice Elena Kagan. I thought she did a brilliant and heartfelt job of summarizing the enormous impact Justice Scalia had on law and judging in the United States.
I told my students at Georgetown Law at the beginning of our class this semester that, fifty years ago, the question I thought most judges would have asked themselves was, "What is the just outcome in this case?" The question far more frequently has become one that respects democratic self-government: "What outcome in this case is most faithful to law?"
The change is due principally to the work of Justice Scalia, probably the most intelligent man I have ever known, His acumen is widely recognized; his courage in taking on the existing order isn't so much, but should be.
Justice Kagan's remarks are here.
One would hope that the outcome "most faithful to the law" would be "just." If not, there is a problem with the law.
Perhaps the real question that was being (wrongly) contemplated fifty years ago by far too many judges was: What is the "right" outcome in this case?
As Justice Scalia taught us all, what is "right" (in the opinion of a particular judge) may not be what the "law" requires. And a judge's constitutional duty is to faithfully apply the law, not to impose his/her conception of what is "right" on the rest of society, lest the rule of law be just hollow words.