Remembering Justice Antonin Scalia
- Professor Eric Claeys
- Senior Circuit Judge Douglas Ginsburg
- Professor Michael Greve
- Professor Michael Krauss
- Professor Jeremy Rabkin
- Professor Neomi Rao
- Professor Ilya Somin
Professor Eric Claeys:
I didn’t know Justice Scalia well, but I did enjoy the time I spent with him. Like other Supreme Court clerks, during my clerkship I took him to the A.V. Ristorante and argued constitutional law with him over thin-sliced pizza. He never remembered my name, but he did remember me by sight, as a Rehnquist clerk who was a good imitator of Chief Justice William Rehnquist (my Justice), and “had down all of” Rehnquist’s “awkward, bony gestures.”
Like most other law professors and lawyers, I knew Justice Scalia best as a judge and as a public intellectual. And he was a giant in both of those roles. But like Scalia, I’m a Roman Catholic. And personally, I’m grateful for Justice Scalia’s example as a public, practicing, and unapologetic Catholic. When I was in my twenties, I hadn’t thought much about how important it is to be a witness to the Christian faith. To speak up when someone criticizes the Church’s creedal beliefs or core teachings, or to stay away from events that undercut those beliefs and teachings. Justice Scalia was a confident witness of his faith, I noticed how he dealt with some of these issues, and his example jolted me into thinking about these issues more than I’d ever done to that point. I don’t claim to be as reliable a witness as he was, but I think I’m a more courageous witness for his example and I’m grateful for that example.
Justice Scalia’s judicial legacy
Although Justice Scalia wrote a lot of memorable opinions, two deserve pride of place. One is his dissent in Morrison v. Olson, the 1988 case upholding the independent counsel statute from separation of powers challenges. Although Scalia’s opinion was excellent on the law, what made it an opinion for the ages was the way it linked the law to constitutional policies and the facts of the case. Scalia’s main legal argument was that the prosecutorial power was a core executive power, such that the President deserved power to hire and remove prosecutors at will. Scalia showed how congressional committees had used the independent counsel process to harass Ted Morrison, then Assistant Attorney General for the Office of Legal Counsel, while he was trying to defend and accomplish the President’s executive agenda. And this episode proved Scalia’s main point: Although the independent counsel statute had been drafted to stop another Nixon from stonewalling another Watergate investigation, in practice its main effect would be to encourage congressional committees to intimidate executive officers and divide their loyalties from the Presidents who appointed them.
Justice Scalia’s most memorable majority opinion is his 2008 opinion in District of Columbia v. Heller. Before Heller, the Court had said very little about the Second Amendment’s right to bear arms. In a magisterial opinion, Scalia covered the text of the Second Amendment, the texts of contemporaneous constitutions, dictionary definitions and legal usages of the Second Amendment’s terms, and the Court’s case law to clarify that the right to bear arms is an individual right and not a collective right.
Justice Scalia’s intellectual legacy
Justice Scalia’s greatest legacy won’t be in any opinion, though, but in his intellectual legacy. Morrison illustrates one part of that legacy—Scalia’s willingness to lose a case now to win the intellectual argument later. Scalia’s dissent lost the battle in Morrison, but it convinced lots of conservative lawyers—all the veterans of the Nixon, Ford, and Reagan White Houses, but also Republican congressman and many younger lawyers such as myself. And that dissent then seemed prescient when the Hon. Ken Starr used the same independent counsel powers against President Clinton. Although Scalia’s dissent wasn’t the only factor convincing Congress not to renew the independent counsel statute, it still played an important role.
And Heller illustrates well the other half of Scalia’s intellectual legacy—the fact that originalism is now a serious theory of statutory and constitutional interpretation. I don’t have any first-hand recollections what it was like for lawyers, judges, or scholars to argue about constitutional law in the 1960s or 1970s. But readers can get a sense of the stakes by reading the coverage of Justice Scalia’s death and life. In European articles, some journalists have summarized the Justice’s legacy by saying his jurisprudential views were “extreme and out of step.” Criticisms like these assume that originalism isn’t a viable theory of interpretation. And also that any theory of interpretation should be judged by its policy effects in relation to evolving social sensibilities, or its effects on various political constituencies whose voices deserve to be heard. I suspect that the intellectual climate in the United States in the 1970s was similar to the intellectual climate assumed in these European articles.
Here, in the United States now, things are different. There are now a lot of lawyers, judges, and academics ready to argue that originalism is viable. And to explain why it’s desirable, specifically because it promotes the values we associate with the rule of law and the impartiality of justice. And Justice Scalia deserves as much credit as anyone else for the fact that originalism is so respected in the United States now—by his example as a Justice, by his public speeches and arguments, and by his judicial and academic writings.
Senior Circuit Judge Douglas Ginsburg
Justice Scalia’s 30 years on the Supreme Court had a profound effect upon the discourse among all the Justices, as reflected in scores of their opinions. His focus upon the text of statutes, to the exclusion of legislative history, and upon the original public meaning of the Constitution, to the exclusion of “evolving standards of decency,” demanded a response.
A few years ago I calculated that, over the preceding decade, a fifth of all the Court’s decisions arising from the Constitution of 1789 (as opposed to the Civil War amendments) relied upon sources of insight into the original public meaning of the clause in question. Regardless whether Justice Scalia’s understanding commanded a majority, as in Heller, or was not shared by even one other Justice, as in Morrison v. Olson, it almost invariably elicited a response in kind, that is, a different interpretation of the sources bearing upon what the founding generation would have understood by the constitutional principle or clause in question.
As originalism gained ground, resort to legislative history receded and, when invoked, became a more disciplined exercise, but not because Justice Scalia would respond by mining the same materials to a different end. On the contrary, because he had made a persuasive case against the practice as an invitation to judicial usurpation, his colleagues were less inclined to indulge it. My impression is that the same is true of the lower federal courts, including the D.C. Circuit.
Justice Scalia’s influence upon the Court’s interpretive methodologies will not soon fade. His book, A Matter of Interpretation (Princeton, 1998), will be read by generations of law students. Teachers of constitutional law or of statutory interpretation will continue to welcome the debate between the Justice and five of his most erudite critics, so that future lawyers and judges can decide for themselves the fundamental questions: What is the purpose of having a written constitution? And should the Congress of the United States be taken at its word?
Professor Michael Greve:
Post mortem, even Justice Scalia’s foes have readily acknowledged his eloquence and wit. But then, it’s easy for them to be gracious when the mystery of life hovers triumphantly over the prostrate body of the Constitution.
Me, I cherish not so much those roaring dissents but the countless Scalia opinions on more pedestrian subjects, from procedure to jurisdiction. The great man took great care with those opinions. Many are brilliant; a few are awfully wrong. But there’s never a seven-factor test, nor any holding back: here’s the legal proposition; here’s the argument; here are the objections; here’s why they are unpersuasive. This, dear students, is how you should think about law.
My fondest memory: at a dinner many years ago, Justice Scalia arrived in an absolutely foul mood. He’d been stuck in traffic for well over an hour; missed the time for pre-dinner conviviality and drinks; and now had to sit through tedious speeches, seated next to the Greves of all people. Naturally he picks a fight; naturally I fight back. Eventually the quarrel turns to some esoteric case (about transitory jurisdiction, if I recall correctly) and before her husband blows a fuse Mrs. Scalia interjects, “Nino always thought that case had to be decided on the feast day of our Lady of Guadalupe. A court like that needs all the divine intervention it can get.”
Perfect, at so many levels. It never leaves you.
Professor Michael Krauss:
I had met Justice Scalia professionally on a few occasions; these included, notably, a dinner at the Court that the Justice had personally organized to honor the International Association of Jewish lawyers, which was meeting in Washington. Justice Scalia amazed me at that time with his knowledge and love for the Hebrew bible and for the Jewish people. The Justice had insisted that the Court’s kitchen be made Kosher to enable preparation of the dinner, and he delivered a welcome speech that was erudite and replete with a homily that included excellently spoken Hebrew! That was a kindness I never forgot.
But I got to know the Justice much better after 2011, when he hired my daughter Rebecca to be his clerk. Since then Justice Scalia has had an influence on me (and, through me, on my students) in two ways. Professionally, his recent book on Interpretation has become a focus for my Jurisprudence seminar, and has spawned student papers, several of which have been published. Personally, Justice Scalia was kind enough, on several occasions over the past few years, to offer me his wife’s seat in the courtroom when an important Torts or Products Liability case was to be argued. After the argument he would invite me to his chambers to discuss the case. Our meetings were always a delight - Justice Scalia greatly enjoyed deep intellectual discussions of underlying issues, and I found his enjoyment to be in no way diminished if I disagreed with him.
I came to know, like, and greatly respect a Justice who was, in my estimation, one of the six most influential Justices in our nation’s history. He was a gregarious bon vivant and a towering intellectual. I fear we shall not know another such combination on the Court during my lifetime. His passing is a great loss for the country.
Professor Jeremy Rabkin:
Antonin Scalia’s Battle Against Judicial Activism
Some tributes to Antonin Scalia have depicted him as an arch conservative. That’s misleading. I worked for him in the late 1970s. Scalia was the editor-in-chief of AEI’s journal, Regulation. I was an assistant editor. Scalia was not at all stuffy or guarded or morose about social trends. One of the things I recall most vividly from that era was an AEI conference on whether state legislatures should demand a new constitutional convention to craft a balanced budget amendment. The Constitution provides for amendment in this way, but it’s never been tried. At that AEI conference, Phyllis Schlafly, then campaigning against the feminist Equal Rights Amendment, warned that leftwing activists might use the convention to launch whole raft of dangerous new provisions. An ACLU lawyer offered a very similar warning from the other side, seconded by Prof. Gerald Gunther, the leading constitutional law scholar of that era. Scalia was alone in endorsing a new constitutional convention. A new convention couldn’t be restricted to crafting a balanced budget amendment? Fine! Scalia ticked off half a dozen controversial Supreme Court rulings of the previous decade on which, he said, it would be good to let the people’s representatives have a say. Scalia enjoyed robust argument. He didn’t want judges to preempt great debates. In his few years on the D.C. Circuit and his decades on the Supreme Court, he pushed back hard – and often quite effectively – against the temptation of colleagues to associate their own policy preferences with what the law actually requires. He never confused ponderous preachment with compelling analysis. Scalia must have been disappointed at the Court battles he lost over the years, but he always summoned the confidence to appeal to readers outside the Court. He has made a real difference.
Professor Neomi Rao:
A remarkable man, Justice Scalia was larger than life both in person and in the pages of his many trenchant and memorable opinions. During my clerkship for Justice Clarence Thomas, I found that I agreed with Justice Scalia not only about many matters of legal interpretation, but also about anchovies on pizza at A.V. In the back room of that storied pizzeria with Justices Scalia and Thomas and my co-clerks, we shared many hours of good conversation about life and the law.
Justice Scalia’s contributions to the law and to theories of constitutional and statutory interpretation will influence for generations. He shifted the framework for how we understand law through his unapologetic defense of formalism and the importance of law as law. Even those judges, lawyers, and law professors who disagreed with his methods of interpretation had to take seriously the text of statutes and the original meaning of the Constitution.
Justice Scalia repeatedly followed the law where it led him, even though the consequences may not be the ones he would have chosen as a lawmaker. Yet for Justice Scalia, lack of fidelity to the law would in the long run prove the worst consequence because it would undermine our democratic institutions and erode individual liberty. The force of his approach is best represented in his devastating dissent in Morrison v. Olson, in which Justice Scalia argued against the constitutionality of the independent counsel statute and demonstrated the perils to individual liberty when the perceived needs of the time trump the Constitution’s careful delineations of power.