The Great Dissent: Justice Scalia's Opinion in Morrison v. 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 the 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:

Learn more about Professor Richard Pildes:

Learn more about Professor Gary Lawson:

Related links:

Justice Scalia’s dissent:

Morrison v. Olson on Oyez:

Differing views:

Morrison v. Olson is bad law:

Scalia’s Finest Opinion:

Is Morrison v. Olson Still Good Law? The Court's New Appointments Clause Jurisprudence

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

The Special Counsel, Morrison v. Olson, and the Dangerous Implications of the Unitary Executive Theory

Shielding Mueller: Thoughts on Morrison v Olson

Morrison v. Olson Oral Argument Rewind: Everything Old Is New Again

[acstamos]

Scalia was one of the giants of American Jurisprudence. He understood the meaning and the function of our constitution. May he Rest In Peace.

[joevartanian]

I remember when Judge Scalia came to my law school he humbly said that being a Supreme Court Justice did not give him the right to make law and come up with justifications in the Constitution that weren't there. And then some doof in the class, who clearly did not like Scalia's opinions, told Scalia that Scalia was "wise" and therefore DID have that right. Dude was clearly oblivious to the fact that he's saying someone he disagrees with (Scalia) should unilaterally impose laws on all of us. That was the moment when I understood the deep flaw in leftist thinking about the Constitution.

[thinkingoutloud]

The “Special Counsel” is a part of the idea of checks and balances. It was put in place to address suspected wrong doings by the executive branch. The idea of checks and balances is written into the Constitution. Congress has no authority to change the Constitution with a statute. That can only be done by an amendment. Call it simplistic, but that’s part of the brilliance of the Constitution, and it addresses separation of powers in just as focused a manner. Scalia was absolutely right and I hope that our SCOTUS will eventually adopt his dissent. We don’t need these circuits acts coming out of the anger of our partisan congress. It’s crippling and does damage. Our recent experience shows us how the same partisan congress can and will abuse this unconstitutional “Special Council” for partisan reasons, and then STILL use their constitutional power of impeachment.

[anarkitype]

How I missed that the Federalist Society has a Youtube channel is beyond me... how brilliant. Thanks YT algorithm. And an informative video.

[peaceharmony]

Scalia was absolutely right on this one: If the President is abusing power, or corrupt, then Congress has the clear authority and framework to remove him or her from office.

[brianevans]

Did anyone else feel like this video was an entire hour documentary, and then be pleasantly surprised at the end that it only used 15 minutes of your time. Very nice work Federalist!

[robertbennie]

Too much side noise, not enough Scalia.

[phillipjasoneverly]

I wish he was still with us, but I'm also grateful we had him as long as we did. May he rest in peace for all time.

[AustrianJager]

Simply the greatest, most smart, most analytic judge ever lived in the USA. Period!

[sonnyhernandez]

I found it interesting the lawyer who was against the opinion came around to say that Scalia was "right about the the way the independent council act would act in practice" The lawyer never seemed to put it together that this wasn't Scalia taking a narrow view, this was Scalia understanding the wisdom that was built into the constitutional process. The lawyer stated that without the process impeachment would become rampant and political. How many impeachments have we had in our history? How many special council investigations have we had? What of the 2 methods has worked and which is used as a political tool?

[Occupied_South]

I miss Justice Scalia so much. What a mind. What a man.

[JDPri]

Scalia was a pure constitutionalist. People like the NY Law School guy, and I guess the rest of the court at the time, quite often think in terms of what is good, or bad, for the country. Over time this good or bad feelings lead to failures of judicial prudence and inappropriate power of a branch of government. The sole purpose of the Supreme Court is not to determine what is good or bad for the country, but to determine constitutionality of cases. In that light Justice Scalia was the great Justice of all during his tenure in the court. Everyone should study Scalia's writings to understand the foundation of the country (The Constitution) and how "feeling decisions" have often produced disastrous effects.

[Ironpirate]

I love and miss my favorite justice and legal philosopher.

[deltasquared]

the flaw in ointment of Scalia's dissent is that the current court seems incapable of judging cases based on any form of methodology, but now renders decisions based solely on ideology.

[SigmundS]

Keep in mind, this case is about the independent counsel, not the special counsel.

[astef]

I don’t understand one thing: does Richard Pildes think that the founding fathers, whose entire mission was to upend what they felt was the tyrannies of King George III and the English Parliament, didn’t understand that a president may go rogue and against the will of the people?! That seems like a great leap in logic.

[sgtskysyndrome]

Scalia was a great jurist. His views on proportionality and the 8th Amendment were particularly eye-opening to me.

[Glitch-nrct]

Scalia was famous for reminding people that finding "right and wrong" in a case is not the job of a Supreme Court Judge. Applying the law as *required by the US Constitution should be the only persuit of the SCOTUS even if the outcome appears to be terribly unfair to one of the parties before them. .

[mostlysunny]

Scalia turned me into an originalist. Thank you.

[rosh_corbinSC]

For once Youtube recommended something worthwhile. Congress does not need an extra-Constitutional prosecutor to remove the POTUS. They need a simple majority to file articles in the House and 2/3 vote in the Senate. As usual, Scalia was right.