The Great Dissent: Justice Scalia's Opinion in Morrison v. Olson
Short video featuring Gary Lawson, Richard Pildes, and Theodore Olson
Short video featuring Gary Lawson, Richard Pildes, and Theodore Olson
Thirty years after the decision in Morrison v. Olson, questions raised in Justice Antonin Scalia’s lone dissent continue to inform legal debate on separation of powers and the unitary executive. Some scholars consider Justice Scalia’s dissent to be his finest opinion. What can today’s law school students learn from Scalia’s dissent? Did Justice Scalia err in his reasoning? How do the issues still resonate in American politics today?
Professor Gary Lawson of Boston University School of Law, Professor Richard Pildes of New York University School of Law, and Theodore Olson of Gibson, Dunn & Crutcher discuss Morrison v. Olson and the lasting impact of Justice Scalia’s lone dissent.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speaker.
Learn more about Theodore B. Olson:
https://www.gibsondunn.com/lawyer/olson-theodore-b/
Learn more about Professor Richard Pildes:
https://its.law.nyu.edu/facultyprofiles/index.cfm?fuseaction=profile.overview&personid=20200
Learn more about Professor Gary Lawson:
http://www.bu.edu/law/profile/gary-s-lawson/
Related links:
Justice Scalia’s dissent:
https://caselaw.findlaw.com/us-supreme-court/487/654.html
Morrison v. Olson on Oyez:
https://www.oyez.org/cases/1987/87-1279
Differing views:
Morrison v. Olson is bad law:
https://www.lawfareblog.com/morrison-v-olson-bad-law
Scalia’s Finest Opinion:
https://www.weeklystandard.com/terry-eastland/scalias-finest-opinion
Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence
https://www.jstor.org/stable/1123356?seq=1#page_scan_tab_contents
On presidents v. special counsels, Justice Scalia got it right long ago
https://thehill.com/opinion/judiciary/385506-on-presidents-v-special-counsels-justice-scalia-got-it-right-long-ago
The Confusing and Confused New Attack on the Constitutionality of the Special Counsel’s Investigation
https://www.justsecurity.org/56979/confusing-confused-attack-constitutionality-special-counsels-investigation/
The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory
https://www.acslaw.org/acsblog/the-special-counsel-morrison-v-olson-and-the-dangerous-implications-of-the-unitary-executive-theory/
Shielding Mueller: Thoughts on Morrison v Olson
https://takecareblog.com/blog/shielding-mueller-thoughts-on-morrison-v-olson
Morrison v. Olson Oral Argument Rewind: Everything Old Is New Again
https://fedsoc.org/commentary/blog-posts/morrison-v-olson-oral-argument-rewind-everything-old-is-new-again
Levin, Mabie & Levin Professor of Law, University of Florida Levin College of Law
Professor Gary Lawson joined the University of Florida Levin College of Law faculty on July 1, 2024, after twenty-four years at Boston University School of Law and eleven years at Northwestern University School of Law. While at Boston University, he was named a William Fairfield Warren Distinguished Professor in 2022 – the highest faculty honor within the university. He has authored or co-authored nine editions of a textbook on administrative law, a textbook on constitutional law, five university press books, one popular press book, and more than one hundred scholarly articles on topics ranging from aspects of constitutional theory and history to the proof of legal propositions. His works have been cited in more than twenty opinions of United States Supreme Court justices. He is a founding member, and serves on the Board of Directors, of the Federalist Society for Law and Public Policy Studies and is on the Editorial Advisory Board of the Heritage Guide to the Constitution.
Sudler Family Professor of Constitutional Law, New York University School of Law
Richard H. Pildes is one of the nation’s leading scholars of constitutional law and a specialist in legal issues affecting democracy. He is a Member of the American Academy of Arts and Sciences and the American Law Institute, and has received recognition as a Guggenheim Fellow and a Carnegie Scholar. His acclaimed casebook, The Law of Democracy: Legal Structure of the Political Process (now in its fourth edition), helped create an entirely new field of study in the law schools. The Law of Democracy systematically explores legal and policy issues concerning the structure of democratic elections and institutions, such as the role of money in politics, the design of election districts, the regulation of political parties, the design of voting systems, the representation of minority interests in democratic institutions, and similar issues. He has written extensively on the rise of political polarization in the United States, the Voting Rights Act, the dysfunction of America’s political processes, the role of the Supreme Court in overseeing American democracy, the powers of the American President and Congress, and he has criticized excessively “romantic” understandings of democracy. In addition to his scholarship on these issues, he has written on national-security law, the design of the regulatory state, and American constitutional history and theory.
Respect for his expertise in these areas is reflected in frequent citations of his work in U.S. Supreme Court opinions, the translation of his work into many languages, and his frequent public lectures and appearances around the world, including his nomination with the NBC News Team for an Emmy Award for coverage of the 2000 Presidential election litigation.
His work has been translated and published in Chinese, French, Spanish, and Portuguese. In addition to his scholarship, Professor Pildes plays an active role litigating in these areas. He has won two cases before the United States Supreme Court, including a 2015 victory in Alabama Democratic Conference v. Alabama, a case involving race and redistricting. He served as counsel to a group of former chairmen of the Securities and Exchange Commission in litigation defending the constitutionality of the Sarbanes-Oxley Act; as counsel in election litigation to the Puerto Rico Electoral Commission; as counsel to the government of Puerto Rico; as a federal court-appointed independent expert on voting rights litigation; and as counsel in successful Supreme Court litigation that challenged the way the United States Tax Court operated. He was also a senior legal advisor to the 2008 and 2012 campaigns of President Obama.
Pildes received his A.B. in physical chemistry summa cum laude from Princeton, and his J.D. magna cum laude from Harvard, where he served as Supreme Court Note Editor on the Harvard Law Review. He clerked for Judge Abner J. Mikva of the U.S. Court of Appeals for the District of Columbia Circuit and for Justice Thurgood Marshall of the U.S. Supreme Court. After practicing law in Boston, he began his academic career at the University of Michigan Law School, before joining the NYU School of Law in 2001.
Partner, Gibson Dunn & Crutcher LLP
Theodore B. Olson is a Partner in Gibson, Dunn & Crutcher’s Washington, D.C. office; a founder of the Firm’s Crisis Management, Sports Law, and Appellate and Constitutional Law Practice Groups.
Mr. Olson was Solicitor General of the United States during the period 2001-2004. From 1981-1984, he was Assistant Attorney General in charge of the Office of Legal Counsel in the U.S. Department of Justice. Except for those two intervals, he has been a lawyer with Gibson, Dunn & Crutcher in Los Angeles and Washington, D.C. since 1965.
Selected by Time magazine in 2010 as one of the 100 most influential people in the world, Mr. Olson is one of the nation’s premier appellate and United States Supreme Court advocates. He has argued 65 cases in the Supreme Court and has prevailed in over 75% of those cases. These include the two Bush v Gore cases arising out of the 2000 presidential election; Citizens United v Federal Election Commission; Hollingsworth v Perry, the case affirming the overturning of California’s Proposition 8, banning same-sex marriages; Murphy v NCAA, overturning a federal law prohibiting states from authorizing sports betting; and U.S. Dept. of Homeland Security v Regents of the Univ. of Calif., challenging the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”). Mr. Olson’s practice is concentrated on appellate and constitutional law, federal legislation, media and commercial disputes, and assisting clients with strategies for the containment, management and resolution of major legal crises. He has handled cases at all levels of state and federal court systems throughout the United States. Mr. Olson co-authored “Redeeming the Dream, the Case for Marriage Equality” with David Boies. Both were featured in HBO’s award-winning documentary, “The Case Against 8.”
Mr. Olson's Supreme Court arguments have included cases involving separation of powers; federalism; voting rights; the Tenth Amendment; the First Amendment; the Equal Protection and Due Process Clauses; jury trial rights; punitive damages; takings of property; the Commerce Clause; administrative law; taxation; criminal law; sports wagering; copyright, patent and antitrust; securities; campaign finance; foreign sovereign immunities; telecommunications; the environment; the internet; the Supremacy Clause; and other federal constitutional and statutory questions. As Solicitor General, during the presidency of George W. Bush, Mr. Olson was the Government's principal advocate in the United States Supreme Court, responsible for supervising and coordinating all appellate litigation of the United States, and a legal adviser to the President and the Attorney General. As Assistant Attorney General for the Office of Legal Counsel during the Reagan Administration, Mr. Olson was the Executive Branch's principal legal adviser, rendering legal guidance to the President and to the heads of the Executive Branch departments on a wide range of constitutional and federal statutory questions, and assisting in formulating and articulating the Executive Branch's position on constitutional issues.
Mr. Olson has served as private counsel to two Presidents, Ronald W. Reagan and George W. Bush, in addition to serving those two Presidents in high-level positions in the Department of Justice. He has twice been awarded the United States Department of Justice's Edmund J. Randolph Award, its highest award for public service and leadership, and also received the Department of Defense's Distinguished Public Service Award, its highest civilian award, for his advocacy in the courts of the United States, including the Supreme Court. He also received the American Bar Association Medal, its highest award for “exceptionally distinguished service by a lawyer or lawyers to the cause of American jurisprudence.” Mr. Olson is to receive the 2021 Jack Valenti Friend of the White House Fellows Award in the Fall of 2021 to be presented by the White House Fellows Foundation and Association.
Mr. Olson is a member of the Commission on White House Fellowships; a member of the Board of Trustees of the Ronald Reagan Presidential Foundation; a member of the Board of Visitors of the Federalist Society; the Board of Directors of the Knight First Amendment Institute at Columbia University; and the 9/11 Pentagon Memorial Foundation. He was a visiting scholar at the National Constitution Center in 2007. He served on the President's Privacy and Civil Liberties Oversight Board from 2006 to 2008; and of the Council of the Administrative Conference of the United States from 2010 to 2020. He was Co-Chair of the Knight Commission on the Information Needs of Communities in a Democracy from 2008-2009, and served two terms on the Board of Directors of the National Center for State Courts.
Mr. Olson is a Fellow of both the American College of Trial Lawyers and the American Academy of Appellate Lawyers. He has been repeatedly listed in legal publications as one of the nation’s leading appellate lawyers. The late New York Times columnist William Safire described Mr. Olson as his generation's "most persuasive advocate" before the Supreme Court and "the most effective Solicitor General in decades.”
Mr. Olson received his law degree in 1965 from the University of California at Berkeley (Boalt Hall) where he was a member of the California Law Review and Order of the Coif. He received his bachelor's degree from the University of the Pacific, where he was recognized as the outstanding graduating student in both forensics and journalism. He has written and lectured extensively on appellate advocacy, oral communication in the courtroom, civil justice reform, and constitutional and administrative law.
