Tribute: The incomparable Antonin Scalia

Kristin Linsley Myles is a litigation partner at Munger Tolles & Olson LLP. She served as a law clerk to Justice Scalia for October Term 1989.

When Justice Scalia joined the Court in 1986, I was in law school. During those years, Harvard was the home of Critical Legal Studies and other deconstructionist theories, and constitutional law seemed a blur of fuzzy thinking and multi-factor balancing tests. But already, by the time I graduated in 1988, Justice Scalia had begun to have an impact on legal thinking. Even professors who disagreed with him – which at that time formed a large percentage of the Harvard faculty – assigned his opinions because they were compelling statements of the law against which the professors might then present their views.

As I was graduating from law school in 1988, the Court issued Morrison v. Olson, upholding the special prosecutor law against a separation-of-powers challenge. Justice Scalia’s lone dissent instantly became legendary among scholars and remains one of his most remarkable writings to this day. I and other students were hooked – we pored over the opinion, admiring its sharp prose and reading passages out loud, including my personal favorite: “he who lives by the ipse dixit dies by the ipse dixit.” So when I was invited to interview with Justice Scalia, I felt like I was going to meet Elvis, George Washington, and Carl Yastrzemski, all rolled into one – my all-time legal hero.

When I started the clerkship at the beginning of October Term 1989, Justice Scalia still was finding his place on the Court, trying to persuade the other Justices to rethink the way they approached legal analysis, both statutory and constitutional. In those days, Justice Scalia frequently dissented or concurred separately on statutory interpretation cases where the Court had adopted an approach based on policy, fairness, or – worst of all – legislative history. Sometimes he refused to join a lone paragraph of an opinion with which he otherwise agreed, or dissented from a result where the Court used legislative history to depart from the statutory text – for example, his 1989 opinion concurring in part and concurring in the judgment in Blanchard v. Bergeron. He argued that the only legitimate statutory law was one passed by Congress and signed by the President, not a passage snuck into a House report or announced by a lone senator on the floor that could be used to manipulate the language into something not actually passed. Such extrinsic materials, he said, “are used to make words appear to come from Congress’s mouth which were spoken or written by others (individual Members of Congress, congressional aides, or even enterprising lobbyists).” He also insisted that text be followed despite countervailing economic or social considerations. In a case our Term, he voted to enforce the statutory “filed rate doctrine,” disagreeing with Justice John Paul Stevens that the doctrine no longer made sense in light of increased market competition and regulatory developments evincing a policy choice in favor of deregulation: He wrote: “It may well be, as Justice Stevens thinks, that after the 1980 amendments and the various administrative changes that the Commission has made by rule, ‘”[t]he skeleton of regulation remains; the flesh has been stripped away.”’ But it is the skeleton we are construing, and we must read it for what it says.”

This exchange illustrates another unique aspect of Justice Scalia’s jurisprudence – he was passionate about many legal topics that simply did not interest most of the other Justices – such as administrative law, bankruptcy, and similar mundane topics. I had the pleasure of speaking last week with Justice Stevens at Justice Scalia’s funeral, and I commented on this point – that he and Justice Scalia were the only Justices who were really passionate about administrative law. He responded with genuine affection: “There were not many areas of the law about which Nino was not passionate.”

The same was true of Justice Scalia’s constitutional jurisprudence. For him, the words of the Constitution controlled – not the whims or preferences of a majority of Justices. This meant that if a right was enumerated in the Constitution, it should be given effect and not watered down or ignored simply because of new social mores or new technology. One example was the Confrontation Clause, which states that the accused shall have the right “to be confronted with the witnesses against him.” In a series of cases involving child victims, states had tried to protect the child witnesses by allowing their testimony to be presented by video, or from behind a screen. A majority of the Court during our Term supported this approach, adopting a pragmatic view that being able to cross-examine the child was enough. Justice Scalia, joined by Justices Brennan, Marshall, and Stevens, strongly disagreed: the clause says confront and cannot be watered down to accommodate the sensitivities of a witness. That interpretation ultimately became the law in Crawford v. Washington.

So it was also with the First Amendment. In a major case our Term, Scalia voted with Justices Brennan and Marshall and others to strike down the federal statute prohibiting flag burning as a form of protest. Such protests fell within the core First Amendment protection of speech: as Justice Scalia used to say, the state can generally forbid drivers from putting their hands out the car window, but they cannot specifically prohibit a driver from waving a fist out the window. Other examples of Justice Scalia’s fealty to enumerated rights arose in Fourth Amendment cases, where he refused to dilute the right of the people “to be secure in their persons, houses, papers, and effects” based on new technological innovations such as GPS and thermal imaging technology.

This brings us to unenumerated rights. Justice Scalia has been criticized for ignoring social trends and popular viewpoints as a means of interpreting the Constitution. This includes the right to engage in assisted suicide, paternal rights over one’s biological offspring, the right to an abortion, and a host of other proffered rights. These votes by Justice Scalia have a common ground: the proffered right is not mentioned in the text of the Constitution. Justice Scalia opposed the Court’s use of the Due Process Clause to create such rights under the guise of “liberty.” That text of that clause, which states that no person shall be “deprived of life, liberty, or property without due process of law,” simply could not sustain the exercise, because it authorizes any such right to be taken with due process, which had long been understood to include the state legislative process. The use of so-called “substantive due process” to add new and unenumerated rights to the Constitution required reading out of the clause the crucial words “without due process,” an exercise that Scalia, as textualist, could not countenance – any more than he could countenance reading affirmative rights out of the Constitution based on the Justice’s policy preferences. Not only does such an exercise create a unstable and unpredictable jurisprudence, he believed, but it diminishes the people’s right to govern themselves, removing entire political or social issues from the legislative process.

Justice Scalia had a profound effect on the way judges and lawyers think about law. Even Justices who reached different results came to do so based on their reading of the relevant text – rather than on policy or social grounds. As Justice Kagan stated in reflection recently: “Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law.” And his influence in law schools beginning in his very first years on the Court has only increased to this date. Another Scalia clerk and a member of the Harvard faculty noted recently that the entire tone and content of legal teaching has changed radically since he was a Harvard student, pre-Scalia, nearly three decades ago.

Finally, a word about Justice Scalia as a colleague, a boss, and a human being. It is easy to see, from interactions during Justice Scalia’s lifetime and the Justices’ statements after his death, that the other Justices adored him, even if they disagreed on outcomes in specific cases. Justice Scalia’s kinship with Justice Ginsburg is widely cited, and truly was a close personal friendship characterized by shared interests and mutual respect. The same was true of Justices Brennan, Stevens, Marshall, and others – including, most recently, Justice Kagan. During my clerkship, we often saw Justices Scalia and Brennan emerge from Conference and proceed down the hall together, arms around each other’s shoulders, laughing uproariously over some piece of shared hilarity. And Justices Stevens and Scalia, who sat next to each other in Court in accordance with the Court’s seniority seating rule, often were seen sharing some humorous secret or another on the bench, sometimes leaning their chairs back and disappearing from view as they giggled over the point together.

Justice Scalia was an amazing boss and made my year on the Court one of the most meaningful of my professional career. Central to our chambers process was our conference with the Justice in which we addressed each case up for argument. The clerk assigned to the case would do a brief presentation of the issues and his or her recommended outcome. A lively discussion would then ensue, with the clerks and the Justice debating each and every point – the meaning of the relevant text, related prior precedents, the consistency of the proposed outcome with Justice Scalia’s judicial philosophy, and arguments that might be made against the proposed result. Justice Scalia adored this debate, through which he would hear all reasoned arguments and either solidify his initial view, or sometimes change it. As for opinion-writing, we clerks did our best to imitate his inimitable style in our drafts. Sometimes we succeeded and our words made it to the final version; other times, what the Justice used to call the “lefto” file (his electronic repository for passages cut from the clerk’s draft opinion) would be full by the time he finished. Either way, every word that emerged from his closed-door office and circulated to the other Justices was his own.

Sometimes the Justice would wander in to our part of chambers and read us passages from his then-current draft, just to see if the writing flowed or if the tone was right. Other times he’d read from a brief written by a party or an amicus – sharing with us what he saw as some hilarious phrase or argument. Between these moments and the joy of watching him spar with counsel and his colleagues on the bench, there was never a dull moment in the Scalia chambers.

I am deeply grateful to have had the opportunity not only to assist Justice Scalia professionally and serve as a small contributor to his legal legacy, but to become part of his extended and extensive family. Justice Scalia has scores of children and grandchildren to dote on, and dote on them he did – but somehow he still found the time and energy to become a father figure to his one-hundred-plus clerks, rejoicing and beaming with pride at our accomplishments and successes; personally reaching out to us in times of personal or professional difficulty; and generally relishing the company of what he affectionately called his “clerkerati.” Well over a hundred present and former law clerks attended the services at the Court and at the National Basilica to honor him and commend his spirit to God. To a person, former clerks who attended spoke about his loss as they would the loss of a beloved parent, in addition to that as a legal hero and mentor. He was just that way to all of us – he will be sorely missed at the Court and by we clerkerati.

 

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