Speaking to the Federalist Society’s National Lawyers Convention shortly after Donald Trump’s election increased expectations that a conservative jurist would replace the late Justice Antonin Scalia, Justice Samuel Alito did not mention the election, the president-elect, the society’s reported role in shaping Trump’s list of potential nominees, the current eight-member court or a future conservative majority. Alito’s one reference to changes on the bench involved oral argument. In the 26 arguments since Scalia’s death, Alito said, “lawyers are beginning with confidence to talk about legislative history.” To laughter from an audience largely made up of current and former law students groomed on Scalia’s opinions, the justice reminisced about how Scalia used to pounce, like an exaggerated cartoon cat, on any inexperienced advocate who mentioned legislative history. “Was that legislative colloquy voted on by both houses of Congress and signed by the president?” Scalia would ask. As the mice have begun creeping out of their holes, Alito admitted with a touch of sentimentality, “I have reflexively looked to where Scalia sat” and felt “a palpable emptiness in the room.”

A similar tone of tribute infused the remainder of Alito’s remarks, and the audience responded warmly to anecdotes depicting the late justice off the bench: as a six-year old boy playing stickball outside row houses in Queens, New York; as a teenager taking the subway to high school in Manhattan while wearing full military uniform and carrying his rifle; playing the lead in Shakespeare’s “Macbeth.” The second-to-last time he saw Scalia, Alito told the audience, was at a lecture Scalia gave to a group of Dominican friars who had invited the justice to speak on the legacy of St. Thomas Aquinas in celebration of the Catholic order’s 800th anniversary. To Alito’s amazement, Scalia bluntly told the white-robed friars, “Aquinas was a fine philosopher and theologian, but he was wrong” on textualism. After imagining Scalia “carrying on that argument in heaven, two Italians drinking red wine,” Alito concluded, “we below are left to ask ourselves, WWSD.”

This phrase – standing for “What would Scalia do?” – referred to a playful and “highly sacrilegious” T-shirt that a group of Columbia University law students once gave to Alito. While Scalia lived, Alito observed, the expression remained “academic.” As to what Scalia thought on a subject, “one already knew or would eventually know in no uncertain terms.” Following Scalia’s death, the question takes on new significance and serves as a call to action. Alito outlined what he sees as “constitutional fault lines” threatening freedom of speech, especially on college campuses, where Alito claimed a “new orthodoxy rules”; freedom of religion, about which Alito quoted Bob Dylan, “it’s not dark yet but it’s getting there”; and the right to keep and bear arms.

Protecting these rights, Alito continued, depends more on constitutional structure than the Bill of Rights. To paraphrase Scalia, “Human-rights guarantees are worthless without the constitutional structure of democracy.” Alito expressed concern about the expansion of executive and legislative powers, alluding to the Affordable Care Act in a hypothetical about convention attendees engaging in interstate commerce either by drinking coffee or by not drinking coffee (“because they could be drinking it”). Judicial activism also worries Alito, and he praised Scalia’s articulation of the jurist’s proper role under the Constitution as his former colleague’s “greatest contribution” to the law. Textualism, which Alito described as now occupying the “pole position” among interpretive approaches, constrains judges by limiting their ability to stray from the plain meaning of a statute or section of the Constitution. When judges use balancing tests rather than hewing to the text of a legal provision, Alito observed derisively, the “balance always just comes out the way the judge would like it to.”

The Federalist Society convention in Washington continues through Saturday. Justice Clarence Thomas will speak at the convention’s dinner tonight.

Posted in What's Happening Now

Recommended Citation: Andrew Hamm, Alito eulogizes Scalia at Federalist Society, SCOTUSblog (Nov. 17, 2016, 1:55 PM), https://www.scotusblog.com/2016/11/alito-eulogizes-scalia-at-federalist-society/