And Then There Were Eight: Remembering Supreme Court Justice Tony Scalia

Several years ago I had the honor of being sworn to the Bar of the Supreme Court of the United States. I had never tried a case that had gone to the Supreme Court, and I likely never will, but my job required I become a member, so there I was in one of the most famous courtrooms in the world. Not being terribly “academic” by nature, I was never particularly enamored by the boring and detached nature of the writings by Supreme Court Justices in their opinions. I hate legal writing, and I’m irritated by people who like it. In law school, and later while pursuing LL.M. degrees on two separate occasions, I dreaded being required to pick apart opinions to try to figure out what the law is. But standing in front of all nine justices on that day was, and always will be, one of the top highlights of my career.

Justices tend to come from backgrounds where legal writing reads in code that only elitists understand, where ivy breeds ivy, where intellectual individualism is lost in footnotes and bluebooks. They serve on law reviews, publish articles that only legal scholars care about, write books that are only used in law schools, work at large firms in Manhattan for several years before getting to the bench, and once politically noticeable, they end up on the bench where they continue to write in the same tradition.

Scalia, although one of them, was different. He was brilliant to say the least. Some may be shocked to learn that not all Supreme Court justices are respected for their brilliance. Scalia was caustic, arrogant, offensive, perceptibly xenophobic, or at least American chauvinistic. He was also funny, and even in dissent, reminded jurists that the Constitution cannot be brushed aside. He was unapologetically Scalia, and wholly unconstrained once he put pen to paper. If he didn’t revere the Constitution, he at least recognized that it was, in fact, the law, and if you don’t like it, change it. If you can’t change it, then too bad.

In the coming days, there will be legal scholars who will write about Scalia’s best opinions and his influence on the court. Being no scholar myself, I will save you all from providing fodder for your insomnia by doing the same. Instead, I’ll provide you some of my favorite excerpts that I feel represent his wit, his arrogance, and his brilliance. Forgive some of the technical language, and simply treat unfamiliar terms as an opportunity to use Google.

Being a judicial conservative does not mean the same thing as being a political conservative. In a 60 Minute interview, he was asked how his Catholic upbringing, and his Jesuit education impact his judicial philosophy. Scalia would never be baited into being political fodder of the abortion and anti-abortion debate; he’s too good of a jurist to fall for that trap. He simply said that many anti-abortion people are wrong when they say that the Equal Protection Clause requires the state to prohibit abortion. “When the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don’t count pregnant women twice.”

In a case striking down a New York law that required a minimum distance between protestors and an abortion clinic, Scalia said “sticks and stones may break my bones, but words will never hurt me. That’s the First Amendment.”

His dissents were read closely, because when Scalia disagreed with the majority, he would not be shy about articulating not only why he thought they were wrong, but why there is only room for one brilliant mind on the court. In the case Austin v. Michigan Chamber of Commerce in 1990, the Court upheld Section 54(1) of the Michigan Campaign Finance Act, which prohibits corporations, in this case the Chamber of Commerce, from using general treasury funds to pay for incidental expenses associated with state candidate elections. Always skeptical of governmental paternalism, and always a strict constructionist of the Constitution, Scalia dissented. “‘Attention all citizens. To assure the fairness of elections by preventing disproportionate expression of the views of any single powerful group, your Government has decided that the following associations of persons shall be prohibited from speaking or writing in support of any candidate: ___’ In permitting Michigan to make private corporations the first object of this Orwellian announcement, the Court today endorses the principle that too much speech is an evil that the democratic majority can proscribe.”

He was a judicial conservative, and could be counted on to ask the simple question, “what does the Constitution say?” But unlike many jurists, he meant it, and he guarded it closely. During the tumultuous Guantanamo years, the Court in Boumediene v. Bush struck down a portion of the Military Commissions Act that precluded the Supreme Court from having habeas corpus jurisdiction over Guantanamo detainees. Justice Scalia, always tethered to the Constitution, stated in his dissent that the “writ of habeas corpus does not, and never had, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court’s intervention in this military matter is ultra vires.”

At a reception shortly after being sworn in, several of the justices came down to offer congratulations. Ruth Bader Ginsburg held out her hand, and although once vibrant, the test of time was evident. She is the grandma who is still brilliant, but who sometimes forgets to turn off the oven after baking cookies. Justice Sotomayor introduced herself and offered congratulations, and graciously chatted for a few minutes. She’s extraordinarily down to earth. On the court, she’s your crazy aunt who will drive you to the bar and do shots with you when your mom isn’t looking.

Both of those experiences were certainly memorable, but I regret not being able to meet Antonin Scalia that day because it likely would have been my best chance. He never held anything back, and he was my favorite as a result. He was the father who pissed you off because he wouldn’t let you stay out past midnight, and who reminded you to wash your hands before you came to the table. You couldn’t stand him because you knew he was right.

The extent of my experience with Tony Scalia was in the courtroom. As Chief Justice Roberts was giving the order of admission, I looked at Justice Scalia and he looked back at me. We made eye contact briefly, the corners of his mouth raised slightly, and his head nodded faintly in approval. With Scalia, that may be the most praise one is ever likely to receive. For me, that was enough.