Eric Segall has an important guest post at Dorf on Law about a recent constitutional law conference in Atlanta.  Read the whole thing.  But for ELB purposes, the end is the most interesting, about a Q&A session with Justice Scalia where the Justice answered questions written on index cards:

The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning.  Scalia fumbled a bit, said he didn’t read the case that way, and then asked who wrote the question.  I was sitting in the front row and made eye contact with the moderator to see if he wanted me to identify myself. He motioned for me to rise so a microphone was brought over and I nervously repeated the question. I don’t often argue with Supreme Court Justices in front of a full house. Scalia again fumbled, and then said I read the case wrong and the decision only required a rational basis (not a strong reason) for Congress to treat different states differently. I will let history be my judge on this dispute (I’m right) but I was most interested to hear Scalia go on to say that, even if Congress had a rational basis for treating different states differently at the time of the Civil War, that rational basis no longer exists in today’s United States, so the Shelby County Court was correct to rule the way it did. In other words, what “equal state sovereignty” meant in 1868 is very different than what it means today, as a matter of constitutional law.

I agree with Scalia’s approach, and would use the same method of interpretation for principles like “equal protection of the law,” and “cruel and unusual punishment,” and the living Constitution lives on for at least another day.

I reflect on the rationality standard and other odd things in the Shelby County opinions in this forthcoming piece. Justice Scalia’s comments provide an interesting window into the standard of review question unanswered in this case.