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Tribute: Justice Scalia and the next generation of constitutional custodians

Kevin C. Walsh is a Professor of Law at the University of Richmond School of Law. He served as a law clerk to Justice Scalia for the 2003-2004 Term.

Justice Antonin Scalia had a way of getting right to the point. “I have never been custodian of my legacy,” he said in an interview a few years ago. “When I am dead and gone, I’ll either be sublimely happy or terribly unhappy.” Never one to let a point just sit out there, Justice Scalia followed up with a brief disquisition on heaven and hell, and on the devil and his wiles. (Read the whole interview; it’s vintage Scalia.)

Memento mori is a reminder to put last things first, and a helpful way of keeping perspective on what really matters. But this is SCOTUSblog, not Mirror of Justice, so in reflecting on Justice Scalia here for you now I will deal no further with either last things or first. Nor will I attempt to improve on other accounts by former clerks that vividly paint Justice Scalia’s persona in living color.

I shall reflect instead from the perspective of a next-generation volunteer custodian. Discount my perspective for including the personal admiration of a former clerk, should you wish. But there are more of us volunteer custodians than you might think.

For starters, we agree with Justice Scalia that being a custodian is an important job – not so much custodian of one man’s personal legacy, mind you, but of the constitutional understanding handed down to us through him. Justice Scalia’s job as a judge in constitutional cases, he thought, was not to improve on the Framers’ handiwork but to maintain it. And that job description is itself worth maintaining. Understood correctly, maintenance man for the constitutional order is an exalted function. It is a caretaking job that requires a different mindset than the “Mr. Fix-It Mentality” Justice Scalia criticized in his Hamdi v. Rumsfeld dissent. It is not the mission of a Supreme Court Justice in constitutional adjudication, he reminded us, to “Make Everything Come Out Right.”

People tend to like judges who make us feel as if they can Make Everything Come Out Right. But that is all the more reason to be on guard against basing one’s self-understanding on what other people like.

Justice Scalia warned that judicial desire for elite approval could corrupt constitutional law. He was not alone in expressing this conviction. It was Justice Alito, after all, who lamented in his Obergefell dissent the “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”

Avoiding the particular temptation that could lead to this type of corruption was easy for Justice Scalia. He cared little to cultivate the approval of others. It just did not matter to him.

Indifference of this sort stands out anywhere, but especially so in Washington, D.C. Spend some time in our nation’s capital, and you’ll know what I mean. Honest self-reflection on the experience is likely to bring you to sense in yourself the same hunger for approval that you know can exercise such a distorting effect in others.

At least that was my experience. I certainly craved Justice Scalia’s approval during the year I spent as his law clerk at the Supreme Court. Not that there’s anything either unusual or inherently bad in this. Channeled properly, a desire for approval can nourish healthy respect for the reasonable appraisals of others. And all law clerks care (or ought to) about earning and maintaining their judge’s approval. But the very worst way to go about obtaining Justice Scalia’s approval, of course, was to seek it. He did not want a bunch of yes-men (and my year we were all men, in contrast with the next year, for example). Relish of the give and take in argument; zeal for legal truth; zest in its pursuit. These were characteristic qualities of the Boss, and he prized them in his clerks.

Rather than angle for approval (a self-defeating quest), we aimed, instead, to earn his respect. Admittedly, we sometimes fell short of the high bars we set for ourselves (some of us more than others, I should add). And when we did, we knew it. But by valuing what he valued, Justice Scalia taught us the danger of making legal assessments by trying to anticipate the approval of one man.

That cuts against the grain of our current constitutional culture. After all, what is “the right side of history” but the approval of others writ large? That is not the constitutional compass Justice Scalia would have us orient ourselves by. He was the biggest enemy the Living Constitution has yet met. And while many influential voices say the Living Constitution is still in its prime, there is opportunity yet for long-term success in killing it.

As all that lives must die in this fallen world, so may the Living Constitution be closer to its hour of death now than when Justice Scalia joined the Supreme Court three decades ago. Chief Justice John Roberts, for example, is no orthodox originalist. But his dissent from the bench in Obergefell provides some hope for future generations of constitutionalists inspired by Justice Scalia’s jurisprudence. In both symbolism and substance, that dissent from the bench by the Chief Justice of the United States is also evidence of the power of legal ideas like those in all four of the Obergefell dissents to gain in strength over the course of a generation. Compare those four dissenting opinions, for example, with the two dissenting opinions in Roe v. Wade. There is an increase in jurisprudential sophistication.

Justice Scalia obviously had much to do with this. With our loss of him, some now predict originalism’s demise (again, as if unaware that originalism’s obituary has been written before). But such prediction is premature at best, and more like wishful thinking. At the very same time that mourners of all stripes were paying their respects to Justice Scalia and his family in Washington, D.C., constitutional scholars from all over the nation were gathered on the West Coast for one of the strongest annual academic legal conferences in constitutional law: the originalism works-in-progress conference sponsored by the Center for the Study of Constitutional Originalism at the University of San Diego School of Law. The next generation of constitutional originalists is already here, and has been for quite a while now. This arc is not one of decline.

Those familiar with Justice Scalia’s families (both biological and legal) already know just how generative he was. And we also know that he believed himself to be engaged in a work that could take generations. There are many to take on this work. The next-generation constitutional custodians I know are not Scalia clones; the man is irreplaceable. But we know the value of our inheritance. And we will be faithful custodians of his trust in us, in the American people, and in our collective capacity for self-government under law.

Recommended Citation: Kevin Walsh, Tribute: Justice Scalia and the next generation of constitutional custodians, SCOTUSblog (Feb. 26, 2016, 11:38 AM),