Tribute: He did what he was born to do
on Feb 25, 2016 at 3:32 pm
Christopher Landau is a partner at Kirkland & Ellis LLP and head of the firm’s appellate litigation practice. He served as a law clerk to Justice Antonin Scalia for the 1990-1991 Term.
“Gi-dow-da-hea!” Before clerking for Justice Scalia, I was not familiar with this particular expression. The clerkship certainly changed that. The expression (which those without a connection to the greater New York/New Jersey area would translate as “Get out of here!”) was perhaps the Justice’s favorite way of dismissing an argument he deemed meritless. During the course of my clerkship, I certainly had occasion to hear the Justice utter the expression (often accompanied by a brusque sweep of the hand) in response to many arguments, including a fair number of mine.
One of the true joys of the Scalia clerkship was the “clerk conference” in which, after oral argument but before voting, the Justice would convene all four of his clerks in his office and engage us in debate on the pending cases. He wanted us to argue with each other and with him, and thrived on those arguments, with frequent interjections (including the aforementioned “Gi-dow-da-hea!”) often followed by chuckles. These sessions, which went on for hours, were both exhausting and exhilarating. The Justice’s confident writing style often masked the extent to which he struggled to get every case just right.
He really cared about the law; it was in his blood, his DNA. And he cared about the methodology and reasoning, not the results. That was both his strength and his limitation. His methodological rigor, and especially his close attention to text, transformed a profession that had largely come to substitute policy arguments for legal reasoning. But he was not about to dilute his reasoning (or embrace reasoning with which he disagreed) to pick up a vote (or hold a majority). As a result, his views may not have prevailed in particular cases, but he was able to advance a coherent and compelling vision of the judicial role that now stands as his lasting legacy. It is shocking to compare Supreme Court briefs and opinions from the 1970s and early 80s to their counterparts of today. He may not have completely vanquished multi-factor balancing tests, legislative history, and policy arguments, but he certainly succeeded in banishing them to the sidelines.
And he was a true master of his craft. To witness him editing a draft was to see a rock polished into a diamond. He would sometimes summon his clerks for a dramatic reading of a particularly good phrase or passage – he knew when he had nailed it. He understood, and loved, the rhythm of language – perhaps the benefit of being the child of a professor of Romance languages and a schoolteacher. (We are talking, after all, about a man whose right hand, in his official portrait, rests on a dictionary – and not just any dictionary, but his beloved Webster’s Second Edition (1934), never to be confused with the dissolute Webster’s Third Edition (1961).) The Scalia flair is unmistakable: you could remove his name from all his opinions, and still pick them out of a stack with ease. Wolves coming as wolves, elephants hiding in mouseholes; his menagerie of metaphors was endless and unforgettable. But he never pursued rhetorical fancy at the expense of legal accuracy. To the contrary, he was a stickler. Before circulating a draft opinion, he personally would “book” it, reviewing each cited case from the bound volume of the U.S. Reports (all neatly arranged on a cart wheeled into his office) to ensure that the citation was appropriate. No characterizing dicta as a holding, or quoting a helpful fragment of text while omitting its qualifier.
Antonin Scalia had a remarkable gift, and the opportunity to share that gift with the world. He did what he was born to do. For that, I am forever grateful.