We will be hosting a series of tributes to the late Justice Antonin Scalia by some of his former clerks. Our first is from Danielle Sassoon, who served as a law clerk to Justice Scalia for the 2012-2013 Term. She is a litigator at Kirkland & Ellis LLP and an adjunct professor at NYU Law School, where she teaches a Supreme Court seminar.
Justice Antonin Scalia was the real deal. Sometimes, when you peek behind the curtain of power, you suffer a rude awakening. What you find is corruption, ego, or a lack of ideals and intellectual heft. Stepping behind closed doors with Justice Scalia elevated my faith in the judiciary and deepened my love of the law. But it was more than that. The man portrayed in the media as crotchety, gruff, and ideologically driven was none of those things. He was authentic and down to earth. He loved to laugh and he loved to argue about ideas. He was accessible and kind, and mind-bogglingly smart. Individually, those qualities are precious; to find them in such abundance in one person was the wellspring of my admiration, respect, and love for him.
Justice Scalia was devoted to the integrity of reasoning and ideas. He cared deeply about logic, process, and the rules that undergirded particular outcomes – those rules would endure and be the tools used by lower courts to decide future cases. For every case, he would summon the “clerkerati” (his term of endearment for his four clerks) to sit in his office and debate with him about how he should vote. But the debate was about the rule of decision – he wanted us to explain a coherent principle that would undergird our recommended result. He would listen, point out the flaws in our logic, or in the rarer case be persuaded by our ideas.
During the year I worked for him, he suffered some difficult losses in important cases. While my co-clerks and I were devastated on his behalf, he maintained an equanimity that you might not have expected reading his impassioned dissents. He is what we called a “happy warrior” – never internalizing the big defeats or mourning his unbridgeable philosophical differences with his colleagues. Once, as he whistled down the hallway, I noted offhand, “You’re in a good mood today.” He shot back, “I’m always in a good mood!” And it was true. Sometimes he was grumpy but it was always in a playful, jovial way. He channeled his intellectual wrath into his opinions, found comfort in standing by his convictions, and took satisfaction in seeing many of his ideas vindicated over time. Sometimes we labored the most over a dissent – perhaps, you might say, a pointless exercise because our position was not carrying the day anyway. But the thought that future law students might study it, agree with it, and maybe one day substantiate it made the heated struggle well worth it, even when a case would technically be counted as a loss for the Justice.
The Justice had a way with words that I could never hope to emulate, but I imbibed his love of language and precision. I would labor over a draft, struggling to come up with clever quips in the Justice’s inimitable style. And in no time at all, sitting at his desk – often with a cigarette in hand – he would spin clunky sentences into gold, dump excess verbiage, and reorganize ideas into a coherent whole. For him it was effortless, but what was most remarkable is that he never expressed frustration or disappointment in my shortfalls.
When he completed a draft, we would go through it line by line, often reading sentences out loud. Invariably he would consult his leather-bound dictionary and savor the definitions. “It says ‘We punish him for the havoc wreaked by the unlawful scheme’ – are you sure it’s wreaked and not wrought?” Of course I was never sure. Together we confirmed that wreaked havoc was the proper past tense. But that didn’t satisfy him. “Well then what does wrought mean?” We learned that it means to beat metal into another shape. Occasionally, he hovered over a word midsentence – like when he rolled “duplicative” off his tongue in exaggerated fashion like daffy duck. The closest he came to yelling at me was about a word choice in a draft. He called to relay edits to another Justice’s opinion. “While we’re on the topic, NEVER ever use the word ‘impact’ as a verb in one of my opinions, got it?” [Click]. I haven’t made that mistake again.
Justice Scalia was not politically correct and it often got him into trouble. His gaffes on the bench during oral argument were the source of constant media fodder. But I loved that he was unfiltered and called it like he saw it – he lacked the abundant caution that plagues today’s media-conscious politicians, judges, and lawyers. I bet he would have resisted this label, but Justice Scalia was my kind of feminist. In hiring, he didn’t look to give any type of person a leg up, but also didn’t hesitate to say: “find me a goil!” (His jokey pronunciation of girl). He would tell me that I had a civilizing influence on chambers, a compliment I liked to hear, but in all other respects I was treated as one of the gang. He spared me no argumentative punches and demanded rigor from my work. He taught me how to fire a pistol and a rifle, and made me feel like I had grit. He thickened my skin, which was the best preparation for a career in a male-dominated field.
I will miss Justice Scalia’s joie de vivre and his gusto. On several occasions throughout the term we went out for pizza lunch, and the Justice would encourage us to drink a bottle of wine or two. We’d zip back to chambers and then shut our eyes for an afternoon snooze at our desks if we could get away with it. Sometimes these afternoon indulgences would tire him out too. I remember one day receiving numerous urgent phone calls from Justice Ruth Bader Ginsburg’s chambers to get Justice Scalia’s final sign-off on an opinion that was scheduled to go to the printer. I had to put her off with excuses until Justice Scalia stirred from his post-lunch nap.
The Justice loved a good joke, even at his own expense. He hosted an annual reunion for his clerks and the centerpiece of the evening was a roast. We would rib the Justice, and in a room full of laughter his booming laugh rang out the loudest. He teased us that his law clerks were fungible but, in his more earnest moments, he confided that despite his ever-expanding brood of grandchildren, we were like family to him too.
The last time I saw the Justice was in July and he was his old self. It had been a combative year, but he was steeling himself for another round and he was as zesty as ever. He had so much more to teach us and I didn’t doubt that we would have the time. It had become second nature to ask, when examining a new case, “what would Justice Scalia do” – always taking for granted that I would find out. It pains me that we will no longer have the collective benefit of his incisive wisdom. We lost a giant, who forever changed the law and countless people’s lives, including my own. Justice, may you rest in peace.