Like so many Americans, I was grieved to learn of Justice Antonin Scalia’s untimely death on Saturday. As we begin to look back on his life and career, we reflect on what made him such a singular person and what his legacy will be.
How does one write a tribute to a great writer? A man has spent the better part of his life becoming known largely for his writing, and now someone who did not even know him personally aims to pay him homage – and in writing no less. This is an impossible task! And yet, the man is worth the stumbling effort. My sole consolation is that he is not around to read it and point out its flaws.
The common press characterization of Justice Scalia is, not entirely inappropriately, as a “conservative” jurist. His appeal and singularity did not lie in his politics, however, so much as in his judicial philosophy – best described either as originalism or textualism. After roughly a century of lawyers and judges reading prior precedent, statutes and even the Constitution in an ever-more-expansive manner, finding rights and obligations that had not previously been “discerned,” a newly-appointed Justice Scalia proudly and unflinchingly advanced what was then a largely contrary principle.
Rather than reading the Constitution as a “living” document, he advocated reading it to mean exactly what it had meant when written. While this often left political conservatives cheering him on when the Court waded into the “culture wars,” it also led him to champion a view of the Fourth Amendment that would not likely match the policy preferences of many conservatives. As he once said, his originalism occasionally led him to decisions that he personally abhorred – such as a decision where he upheld the constitutionality of flag burning as a form of political speech protected by the First Amendment.
Justice Scalia’s philosophy extended beyond the limited world of constitutional jurisprudence and undergirded his view of understanding “the law” as prescribed in statutes as well. Here he might more correctly be called a “textualist.” He relied heavily upon the wording of the statute and typically despised the use of legislative history – he considered it both unhelpful and a huge waste of time – to determine the meaning of a statute.
When Justice Scalia assumed the high court’s bench, his judicial philosophy was rare. Now it has become common, and “cool,” to the degree that at least two more Supreme Court justices, Clarence Thomas and Samuel Alito, are regarded as generally following the same approach to judicial decision-making. How did that happen? Scalia is almost single-handedly responsible.
While many Supreme Court justices have assumed an ethos of “cool” (the “Notorious RBG,” for instance), Scalia was the original rock star judge. As a law student, I served as president of my law school’s Federalist Society chapter – a post that included a national meeting in Washington D.C. and a backyard barbecue hosted by then-Solicitor General Ted Olson. While I met many well-respected jurists and lawyers, I recall the moment that the crowd began to buzz with the word “Scalia” and the occasional finger pointed at the entryway. Moments later we were treated with the entry of … Eugene Scalia, the judge’s son – then a high-powered lawyer in the Department of Labor and someone we all wanted to meet, but not the giant we thought was strolling in.
How does an unelected judge, appointed to an undemocratic institution, who writes decisions hearkening back to the 18th Century, generate such buzz? How does that happen? Why do throngs of young attorneys – and if my Facebook feed is at all representative, Americans of every stripe – gravitate to an old Italian Catholic judge from New York? I think a few things are at work.
First, Justice Scalia’s writing style was compelling. It was so crisp, so perfect, that it drew in the reader and made the experience of digesting the opinion almost pleasurable. It was so eminently readable, which Scalia meant it to be, that attorney Kevin Ring recently compiled some of the best dissents into a best-selling book entitled Scalia Dissents. Only Justice Elena Kagan, and at times Chief Justice Roberts, write in such a conversational style that makes opinions so readable. Small wonder, then, that Justice Scalia also paired with Bryan Garner, another bright light of legal argument, to co-author books on the art of persuasion and quality legal writing.
It is easy for journalists to capture Scalia’s penchant for powerful writing by citing some of his more entertaining phrases, such as criticizing a decision authored by Justice Breyer as “sheer applesauce,” or opinions by his dear friend Justice Ruth Bader Ginsburg as “absurd” or another time as “not to be taken seriously.” He has humorously called a decision by Justice Kennedy “legalistic argle-bargle” and elsewhere called Chief Justice Roberts’s decision upholding the Affordable Care Act (a.k.a. Obamacare) as “interpretive jiggery-pokery.”
One can find buzzwords aplenty in your average Scalia opinion, and I find them as amusing as anyone. (I have a whole list of favorites.) But the truth is, his writing is worth reading for more than just the occasional peppery reference. It is truly worth one’s time even (or especially) if one disagrees with Scalia, to behold his masterful and unique way of expressing his opinion on the resolution of tough constitutional and legal questions. Scalia taught us that one could hearken back to the intent of the 1780s without having to write in that era’s archaic formalisms.
Second, and related, Justice Scalia knew that his viewpoints were not always popular. He certainly made some of them more popular over his 30 years at the Supreme Court, but he still knew he was swimming against the stream of prevailing legal and cultural thought. He didn’t care. He did this in the rest of his life, too. As a devout Catholic, he told faithful Christians they would be regarded as fools, but he told them to live out their faith anyway. In an interview with New York magazine, his interviewer professed she was surprised by how “boldly” he expressed his belief in the existence of the Devil, and other Catholic teachings. His interviewer was amazed at someone who held to religious beliefs, but did not behave as if he were embarrassed by those beliefs. But such was Antonin Scalia.
Third, I think Nino Scalia commanded the respect and appreciation of Americans young and old because he truly lived life. For a nation founded by English Puritans, the ascent to the Supreme Court of an Italian-American (the first in history) marked a sort of “thermal shock” to the culture. Combine his acerbic wit on the Court with his larger-than-life Italian persona off the Court, and meld into it his somewhat unexpected trait as an outdoorsman who hunted, and (with apologies to a certain Mexican beer company) you are looking at the real “Most Interesting Man in the World.” It is somehow fitting that he died on a hunt.
As lawyers, we mourn the loss of a legal titan. As a longtime fan of his, I will personally mourn his passing. He was a great judge, a fantastic lawyer with a brilliant legal mind, the finest writer I have had the privilege to read, and simply a good human being. He was a personal hero to me in many ways, and though I never met him, I will miss him.
Antonin Scalia, resquiescat in pace.