National Review asked colleagues, friends, and family members of the late Justice Antonin Scalia to say some words about his mind and character. The editors thank Edward Whelan for assistance in planning and organizing this symposium, a version of which appeared in the March 14, 2016, issue.
It was part of Nino’s virtue and charm — and his Christian outlook — that he could find something redeeming and likeable in just about everyone he met, regardless of politics. And so we’d go to dinner at the Scalias’ and find Nina Totenberg, from NPR, along with her husband. Ms. Totenberg has put in her years in the vineyard of covering the Court, and she has cultivated the skills of a workman. But among her skills has never been the knack of concealing her contempt for conservatives.
— Hadley Arkes is the Ney Professor Emeritus at Amherst College and the founder and director of the James Wilson Institute on Natural Rights and the American Founding.
Justice Scalia married my wife and me during my clerkship. We were planning to register our wedding at the local D.C. courthouse, but when the justice’s assistant found out, she intervened and told the justice, who agreed to perform the service at the Court. It was Wednesday, June 4, 2008, and our witnesses (other clerks and Court staff) were, to put it mildly, preoccupied with the opinions still outstanding (including, at that time, District of Columbia v. Heller).
As sons tend to do during such moments at weddings, I wanted to sink into the ground. But I think the justice was genuinely moved. He said (and I remember this quite clearly) that his grandmother had come to America from Italy not speaking a word of English, but was convinced that her grandson would grow up to be president. “The beauty of the American Dream,” he said, “is that nothing is too extravagant.”
A generous and noble man — who knew what to say to my teary-eyed mom at that moment — and an American original, if there ever was one. Rest in peace, Justice.
— Aditya Bamzai clerked for Justice Scalia during the Court’s 2007–08 term.
When I clerked for Justice Scalia in 1987 and 1988, he already had his textualist method, but he was often applying it for the first time to a particular area. So Justice Scalia had lots of discussions in which his clerks as a group would push him on where his method led. One topic was whether the free-exercise clause exempted religious conduct from generally applicable laws. I asked, “Suppose a state, exercising its 21st Amendment power, banned all use of alcohol, with no exception for the sacrament?” He thought a bit and his face broadened into that inimitable smile. The justice said: “The Constitution permits a state to do it, but they’d burn in hell.”
— Richard Bernstein is a partner at Willkie Farr & Gallagher, and a Democrat.
For many years Nino Scalia and I knew each other as administrative-law buffs. We met at least annually with other convivial members of that small group of teachers and practitioners, perhaps at a bar-association meeting in Santa Fe, or Miami, or Washington, where, over a drink after a concert or at a good dinner, we would trade administrative-law stories, discuss recent cases, and thoroughly enjoy ourselves. Yes, even in that setting Nino sparkled with enthusiasm, energy, sense of humor, insight, and seriousness of purpose — the very same qualities that I and his other colleagues have benefited from in more recent years.
I shall miss his love of life, his infectious humor, his memorable phrases, his definite opinions, and his dedication to the Court and to the law.
We would sometimes debate our philosophical differences in public, once before the Senate Judiciary Committee, once on a football field before several hundred students in Lubbock, Texas. He would explain the benefits of “originalism.” I would respond that George Washington was not aware of the Internet. He would reply, “Actually, I knew that.” And, sometimes conceding that originalism, too, had imperfections, he would add that, comparatively speaking, it’s like the camper who sees his friend lacing up his running shoes: “What are you doing?” he asks. “There’s a bear coming,” answers the friend. “You can’t outrun a bear,” he replies. “True, but I can outrun you.”
That was Nino: funny, principled, and spirited. He loved nothing better than a good argument. We both would hope that the audience of students or senators would leave not with a better sense of who was right, but with a greater respect for the institution we represented. They would see that sometimes we disagreed, that we nonetheless understood and paid attention to each other’s points of view, that those views were serious views, and that we were friends. And we were good friends. Like the rest of my colleagues, I shall miss him enormously. I shall miss his love of life, his infectious humor, his memorable phrases, his definite opinions, and his dedication to the Court and to the law.
— Stephen Breyer is an associate justice of the Supreme Court of the United States.
One of Justice Scalia’s lasting legacies will be his influence on generations of law students — past, present, and future. Because he was both a brilliant intellect and stylist, his opinions have always had an outsized influence on law students, who often found his cogent prose refreshing and accessible. Justice Scalia had a unique ability to make complex points in very concise and effective ways, both in relatively mundane cases and in blockbuster cases. For example, in objecting to the balancing test the Supreme Court used in dormant Commerce Clause cases (which asked whether the putative benefits of a state’s regulation substantially outweighed its burden on interstate commerce), Justice Scalia observed that the test was “like judging whether a particular line is longer than a particular rock is heavy.” And, of course, in his lone dissent arguing that the independent-counsel statute encroached on the constitutional prerogatives of the president, Justice Scalia wrote: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.” Students got it.
— Bradford Clark is the William Cranch Research Professor of Law at George Washington University. He clerked for Justice Scalia during the Court’s 1989–90 term.
One evening, while the justice and I were working late on a draft opinion, he walked into the reception area to leave a note for one of the secretaries. I followed him into the room, and we lingered there for a few moments while we continued our conversation about a point in the opinion. Now, in the reception area, near the window, there was a special red phone. I had never seen it used or heard it ring, and no one seemed to know why it was there. But just at that moment, it happened — the red phone rang. Justice Scalia appeared surprised at first, but without missing a beat he looked at me and said, “I’d better answer that — it could be Khrushchev!” He hurried over to the phone, spoke briefly with the person on the other end, and then placed the receiver back down. As he turned to me, I asked him who it was. He smiled and said, “It was a wrong number!” We both had a good laugh.
— Daniel Collins clerked for Justice Scalia during the Court’s 1991–92 term and is now an attorney in Los Angeles.
Robert A. Connor
I took a leave of absence from Marquette Medical School in the spring of 1958 after my freshman year for the purpose of going to Rome nine months later. I had joined Opus Dei the previous February and was offered the opportunity to be in Rome with the founder, Saint Josemaría Escrivá, and to pursue studies in philosophy and theology while there. While life-changing, the right choice was clear to me. My mother, though, was beside herself.
As the date approached for me to leave for Rome, she pulled out all the stops. She went to the headmaster of my high school, whom she knew well, and also to a young man who was notorious in my house, Antonin Scalia.
Scalia and I had spent four years at Xavier High School, 1949 to 1953, studying in the same home room and taking the same classes. We did four years of Latin and three of Greek, and found ourselves duly exercised — particularly in Latin — in our junior year when our instructor drove us relentlessly through the five declensions of nouns and four conjugations of verbs under pressure of a stopwatch. We were marked on speed and accuracy every morning. This was followed by approximately 30 lines of Cicero’s Catiline Orations to translate, then turning an English sentence into Latin, with all the pitfalls of verb complexities. Daunting work. Every day. Through the misery, we got to be good friends. After coming into contact again in 1983, there was not a time that we saw each other and did not revel in the conjugation of some irregular verb or laugh with the sheer joy of reciting the conjugations by rote, pulling them out of some recondite cavity of memory we both had within.
At my mother’s bidding, Scalia and Father John J. Morrison appeared at my house in Jamaica, Queens, in June 1959. The priest tried to give me a sense of timing and proportion, which I thanked him for. Nino asked what this was all about. I explained Opus Dei as I understood it, and the imperative I experienced to give it all — now — in this radical way of being in the world and living Christ. He took in everything I said and got it: “Sounds good to me.” I don’t know what he said to my mother on the way out, but it was decisive. He had the stature and authority, even then, to calm nerves. I appreciated that he took the time and effort to do what he did, and seeing it now in the perspective of who he was, I love him for it. What was astounding to me over the years was his loyalty to that friendship built on a few Latin and Greek verbs.
— Father Robert Connor is a numerary priest with Opus Dei and the chaplain of the Southmont Center in South Orange, N.J.
Alan M. Dershowitz
One morning as I was returning from teaching a first-year criminal-law class at Harvard Law School, my phone rang. When I picked it up, I heard a familiar voice say, “Hey Alan, this is Nino. I accept your challenge.” Although I had known Justice Scalia for a long time — I even knew his father, who was a professor at Brooklyn College when I was a student — I never called him Nino. So I answered, “Who?” to which he replied “Nino Scalia.” I said, “What challenge?”
“Oh, so your students didn’t tell you?” he replied.
“Tell me what?” I asked.
“Some of the students in your criminal-law class challenged me to come debate you in front of the class about my theory of originalism, since they tell me you’ve been quite critical of me.”
I quickly accepted the challenge and we set a date for the debate. He told me to tell the class that he was not coming as Justice Scalia, but rather as just another lawyer with a controversial idea and that everyone in the class should regard himself as everyone else’s equal for the purposes of the debate so that the best ideas would win. “I don’t pull rank when I’m debating.”
Typical Scalia. He loved challenges, debate, and controversy.
We argued back and forth for nearly two hours. The students declared the debate a draw, though each of us probably had a different conclusion.
That was not our only confrontation. When he issued the stay in Bush v. Gore, I was extremely critical, ultimately writing a book, Supreme Injustice, in which I attacked his views in that case mercilessly. When he subsequently addressed a group of faculty members at a lunch, I told him that many people in the room probably believed that if the shoe had been on the other foot — if it had been Bush who sought a recount — he might not have reached the same decision. He responded, “I don’t like being accused of violating my oath of office,” to which I responded, “Then you should be careful to avoid the appearance of having done so.”
When the next round of questioning began, the then-dean, now-justice Elena Kagan pretended not to see my raised hand, obviously seeking to avoid another confrontation. But Justice Scalia saw it and said to Dean Kagan, “Call on Dershowitz, I’m not afraid of his questions.” After the lunch, he came over and put his arm around me and said, “The one thing no one can ever say about us shin-kickers is that we’re boring.”
— Alan Dershowitz is a professor emeritus at Harvard Law School.
John F. Duffy
Many — perhaps even most — of the tributes now being written about Justice Scalia will focus on his most important and significant cases. This tribute does not. It is about one of his least famous opinions ever. But for me, the case confirmed the Biblical truth that “he who is faithful in a very little is faithful also in much.”
The case, Shalala v. Schaefer, was about Social Security benefits, but the dispute was not even about the amount of benefits — it was less interesting than that. It was about the attorneys’ fees in the case, but it was not even about the amount of attorney’s fees — it was more technical than that. It was about the correct time for filing an application for attorney’s fees, and only in cases in a very particular procedural posture under a single statute. A grand total of about $1,300 was at stake.
Worse still, this case was so intricate and confusing that it was the third Supreme Court case in only four years involving the statute. In each of the prior two cases, the Court’s decisions just produced confusion, with the lower courts quickly splitting over how to apply the statute in light of the Supreme Court’s interpretation.
His most admirable feature was his love for the law as law. It was that reverence for law — for its intricacies, its traditions, and its restraints — that made Justice Scalia remarkable.
The oral argument did not begin well, with justices soon questioning whether the government’s position made the statute into a “mishmash” or “mush.” Yet as the argument wore on, something interesting happened. Justice Scalia’s questions started to point toward a more straightforward way of reading the statute, and the attorneys on both sides began to concede that, if their clients’ positions were rejected, then Scalia’s approach was “preferable” to other approaches and made the case “very easy.” Even the other justices began to refer to “Justice Scalia’s suggestion” as being “very attractive since it’s so simple.”
By the end of the argument, it was obvious that the Chief Justice would assign Justice Scalia to write the opinion. The assignment was all the more certain because the statute had generated such confusion — three Supreme Court cases in four years! — that the Chief Justice surely wanted a solution providing some hope that this area of law would not darken the Court’s docket for a fourth time in the near future.
When the inevitable assignment was announced, I was unhappy. As an eager twentysomething just a few years out of law school, I wanted the Scalia chambers to be working on the big cases — the exciting cases; the cases that would be in the New York Times! But I soon realized that my boss was not unhappy in the least. The case was a chance to do some good — to give the statutory text a straightforward and sensible reading; to clean up an area of law that had caused confusion and circuit splits for years; to make a tiny advance for the rule of law. This is what lawyers and judges are trained to do, and Justice Scalia was masterly, and very happy, doing it.
Many testimonials will praise Justice Scalia for his most famous opinions — the ones that did get reported in the New York Times and are now taught everywhere in classes on constitutional law. But I think Justice Scalia’s approach in his least famous decisions is what made possible the clarity of insight in his most celebrated ones. For in all cases great and small, what distinguished Justice Scalia — what made him a truly great judge — was neither his impressive intellect nor his incisive writing, exceptional as those were. His most admirable feature was his love for the law as law. It was that reverence for law — for its intricacies, its traditions, and its restraints — that made Justice Scalia remarkable, not as an aspiring philosopher-king but as a wise judge content to do his part in maintaining the rule of law. He was faithful in the small things, and thus too in the great. He will be missed.
— John F. Duffy is the Samuel H. McCoy II Professor of Law at the University of Virginia School of Law. He clerked for Justice Scalia during the Court’s 1992–93 term.
Justice Scalia was, of course, one of the greatest writers ever to serve on the Supreme Court. He took great care to select just the right word, or to deploy the perfect metaphor, to present his views or, just as often, to poke a devastating hole in others’ shaky reasoning. I will never forget his bouncing into the clerks’ office, where the communal dot-matrix printer resided, to retrieve an opinion he had just written. The justice, often sporting a cardigan sweater and balancing half-moon reading glasses on his nose, would rip the opinion from the printer and give a dramatic reading to the clerks of the best or funniest passages, his eyes twinkling as he read. Justice Scalia took joy in beautiful, clear, vibrant writing, and all of us who clerked for him left his chambers better writers than when we arrived.
— Cameron Findlay, a clerk for Justice Scalia during the Court’s 1988–89 term, is senior vice president and general counsel of Archer Daniels Midland Company in Chicago.
Robert P. George
The last time I saw Nino was a few months ago, when the two of us conducted a public conversation on the Constitution at the Union League in Philadelphia. We had engaged in discussions of this sort on several occasions, and he was always a superb interlocutor. But this time, he was at his very best — absolutely sparkling. The several hundred people assembled as our audience adored him. There is no other word for it. He was witty, charming, articulate, informative, down to earth, and, whenever I pressed him a bit on the few points on which we did not quite see eye to eye, characteristically — and winningly — pugnacious.
He profoundly cared that the Constitution be respected and not manipulated or trashed under the pretext of giving effect to its guarantees.
There was, however, a poignant moment that evening, one that the audience did not witness. In fact, I alone witnessed it. The Union League handled the justice’s visit with great formality. The club’s president introduced the two of us to the audience as we waited out of view in an adjacent room. That way, we could walk into the lecture hall and onto the dais to the applause of the audience. I was given a nice but appropriately brief introduction. Then Nino was given an equally appropriately lengthy and elaborate one. As the president went on and on, noting Justice Scalia’s brilliance, the depth and breadth of his learning, the analytical rigor of his thinking, the elegance of his writing, and so forth, Nino turned to me and said, “If I’m so wonderful, why am I so often on the losing side?”
It was, I believe, what is known as an “Italian joke” — a humorous (and in this case self-deprecating) comment, but one meant to express a truth. Nino was not the sort of person who didn’t mind losing but really cared only to be able to speak his mind, make his point, and revel in the intellectual combat. He was too great a patriot, and he revered the Constitution too much, for that. He minded losing. He profoundly cared that the Constitution be respected and not manipulated or trashed under the pretext of giving effect to its guarantees. He feared that the abandonment of authentic constitutional principles by judges who feel it is their prerogative to make laws and rule the people, in the name of “making the Constitution a living, breathing document,” would doom the nation. Like Lincoln, under whose portrait Justice Scalia and I held our conversation that evening in a club founded during the Civil War to support the Union cause, he regarded the usurpation of the authority of the people and their elected representatives by judges who failed to understand the constitutional limits of their own power as a dire threat to republican government — government of the people, by the people, and for the people.
— Robert George is the McCormick Professor of Jurisprudence, and the director of the James Madison Program in American Ideals and Institutions, at Princeton University.
Ruth Bader Ginsburg
December 12, 2000, the day the Court decided Bush v. Gore, I was in chambers, exhausted after the marathon: review granted Saturday, briefs filed Sunday, oral argument Monday, opinions completed and released Tuesday. Justice Scalia and I were on opposite sides. The Court did the right thing, he had no doubt. I disagreed and explained why in a dissenting opinion. Around 9 p.m. the telephone, my direct line, rang. It was Justice Scalia. He didn’t say, “Get over it.” Instead, he asked, “Ruth, why are you still at the Court? Go home and take a hot bath.” Good advice I promptly followed.
Among my favorite Scalia stories is that, when President Clinton was mulling over his first nomination to the Supreme Court, Justice Scalia was asked, “If you were stranded on a desert island with a Court colleague, whom would you prefer, Larry Tribe or Mario Cuomo?” Scalia answered quickly and distinctly: “Ruth Bader Ginsburg.” Within days, the president chose me.
I will miss the challenges and the laughter he provoked, the roses he brought me on my birthday, the chance to appear with him once more as supernumeraries at the opera. But how blessed I was to have a friend of such brilliance, high spirits, and quick wit. In the words of the duet for tenor Scalia and soprano Ginsburg in the opera buffa Scalia/Ginsburg, we were different, yes, yet one in our reverence for the Court and its place in the U.S. system of governance.
— Ruth Bader Ginsburg is an associate justice of the Supreme Court of the United States.
Kevin B. Huff
One day, during my clerkship, Justice Scalia came to the office after a hunting trip. He produced from his briefcase a picture of himself, in a camouflage outfit, holding by the legs a turkey he had shot. My co-clerks and I loved the picture and decided to play a prank on the justice. We “borrowed” the picture and had it printed onto a computer mousepad. We gave the mousepad to Justice Thomas and asked him to put it on his desk and arrange for Justice Scalia to happen upon it as they talked about a case. A few days later, after oral argument, Justice Thomas asked Justice Scalia to chat with him in his chambers. My co-clerks and I apprehensively waited to see whether Justice Scalia would find the mousepad as funny as we did. After a few minutes, we were relieved to hear, wafting down the halls of the Court, the distinctive belly laughs of the two justices. I will miss that laugh.
— Kevin Huff, of the law firm Kellogg, Huber, Hansen, Todd, Evans & Figel in Washington, D.C., clerked for Justice Scalia during the Court’s 1998–99 term.
Joseph D. Kearney
I almost lost the clerkship after I had accepted it but before it began. On a trip to Washington, I went out for pizza with Justice Scalia and his then-clerks. He was dismayed when I declined any wine, stage-whispering, “Did anyone screen this guy?” His mood quickly brightened when he realized that this meant a smaller group with which to divide the wine. Indeed, he openly mulled whether thereafter he should hire only beer drinkers such as me.
— Joseph D. Kearney is dean and professor of law at Marquette University Law School and clerked for Justice Scalia during the Court’s 1995–96 term.
Everybody knows that Justice Antonin Scalia ranks as one of the best, maybe even the best, writer ever to serve on the Supreme Court. A Scalia opinion promised analytical rigor, clarity of thought and argument, and real entertainment value. When a case came down, who didn’t turn first to the Scalia opinion, especially when he was in dissent?
His law clerks had the great privilege of observing him craft those opinions. Late in his writing process, when the justice was checking for accuracy and working out the final details, you’d find yourself standing behind him while his fingers worked the keyboard. What a remarkable thing it was to see those words appear on the screen! It was humbling, of course, because you knew that you just couldn’t do that. But most of all it was just a thrill to watch legal history unfold before your eyes.
The justice sought help and input, and objected mightily if he thought you were holding back criticism or suggestions. And while he certainly took the writing very seriously, he also had fun with it. I once questioned the correctness of some word choice he had made, and he turned to me, feigning great insult, and said, “You dare to question me, the master pedant, about a matter of pedantry? To the dictionary!” He pointed to his favorite dictionary on a stand in his office, and I shuffled sheepishly to it. I can still hear his laugh — that unforgettable laugh — when his inevitable vindication came.
— William Kelley teaches at Notre Dame Law School. He was a law clerk to Justice Antonin Scalia during the Court’s 1988-89 term.
Like many other lawyers of my generation, I distinctly recall my first Scalia moment. It was on the third floor of Gannett House, in the gabled room at the end of the hall on the left. I had just started my first year on the Harvard Law Review, and Justice Scalia had just ended his first term on the Supreme Court. My task was to “cite check” a student comment on Johnson v. Transportation Agency, one of that term’s leading cases, which included a Scalia dissent.
He had the gift of vision, and the gift of words to explain it. Witnessing Scalia edit a draft was like seeing Michelangelo paint a house or Mozart compose a class ditty.
I had never read anything like it. It was as if, in the midst of a tedious play, a cast member suddenly dropped his mask and exposed the entire performance as a sham. It was shocking, electrifying, transformative. In that gabled room on that fall afternoon in 1987, Justice Scalia changed my life, just as he proceeded to change the Court and the entire legal profession.
He had the gift of vision, and the gift of words to explain it. Witnessing Scalia edit a draft was like seeing Michelangelo paint a house or Mozart compose a class ditty. He brought truth and beauty to the mundane. We shall not soon see his equal.
— Christopher Landau practices law in Washington, D.C., and clerked for Justice Scalia during the Court’s 1990–91 term.
During my clerkship, I was extremely fortunate to experience firsthand not only Justice Scalia’s unparalleled intellect and love for the law but also his genuine warmth and famous good humor. How I so enjoyed the times the justice would amble into our office, sit down on the comfortable leather chair that adorned it, and chat at length about a particular case that intrigued him!
But my most memorable moment of the year was introducing the justice to my grandfather, a Holocaust survivor who came to the United States without a penny to his name. As my grandfather nervously approached chambers, Justice Scalia’s beaming smile and exuberant embrace greeted him. Justice Scalia then announced how honored he was to meet my grandfather, and how my grandfather represented everything that was wonderful about America—a true immigrant success story that made him proud to be an American. I remember the glowing smile on my grandfather’s face (and the tear in the corner of his eye) as he left the Court that day.
That’s how the justice made people feel: important, respected, and richer for having met him. We will miss you, Justice Scalia.
— Joshua Lipshutz clerked for Justice Scalia during the Court’s 2006–07 term. He is a partner in the San Francisco office of Gibson, Dunn & Crutcher LLP, where he specializes in appellate and constitutional law.
Kate Beecher Moore
One of my most vivid recollections of the justice was following the Blizzard of 1996. The Court was scheduled to hear oral arguments, and two feet of snow had brought the city to a standstill. The Metro was still running that morning, and as I walked in knee-deep snow from Union Station to the Court, past abandoned cars and buses, I wondered whether the justice would be able to make it from suburban Virginia. My co-clerks and I had just gathered in the chambers when he burst through the door, snow still falling from his black fur hat. He was full of energy and enthusiasm for the day ahead, and he regaled us with tales of the treacherous trek from his home. He then got right down to the business of grilling us on the day’s cases. As had happened so many times before, we all spent the remainder of the day struggling just to keep up with him.
— Kate Beecher Moore clerked for Justice Scalia during the Court’s 1995–96 term.
Kristin Linsley Myles
Many words have been shared by former clerks, including myself, about the extent to which the justice influenced their thinking, their lives, and their legal careers. But the Justice also influenced many who did not have the privilege of sharing a working relationship with him — especially those in the younger generation.
Justice Scalia touched young people not only with his writings, but with his kind and generous spirit. When my high-school friend’s daughter and her tenth-grade classmates visited Washington last year, he welcomed them into his chambers, taking time out of his day to share with them his way of thinking about the Constitution, the role of the Court, and the law generally. It was a lesson the girls will remember always. The justice always welcomed former clerks and our families to visit him in chambers. The first time my kids and I visited, he arranged a tour of the Court so that they could see the courtroom, the secret hallway and conference room behind the Court from which the Justices emerge from the bench, the Court’s lovely library, and, of course, the Court’s basketball court — the “highest Court in the land,” as my kids still delight in proclaiming. Justice Scalia took note of my five-year-old son, John, dressed in a blue suit purchased for the occasion. “John, how often do you wear a suit?” the justice boomed goodheartedly. John confessed: “This is the first time.” “Well, you wear it well!” the justice assured him. He then proceeded to show the kids around his chambers, explain various pieces of memorabilia, and invite each of the kids to sit at his desk and see what it would feel like to be a justice. My kids also vividly recall Mrs. Scalia arriving in chambers with blondies that she had baked for our visit, as well as her insistence that we come to Virginia for dinner with a larger group of the Scalia family, children, and grandchildren. It was an outpouring of kindness and affection that made my kids and me feel truly a part of the Scalia family.
— Kristin Linsley Myles clerked for Justice Scalia during the Court’s 1989-90 term.
By the 1990s, a well-established Scalia-clerk tradition was the annual visit to A.V. Ristorante, a local Italian restaurant best known, in the justice’s view, for its anchovy pizza. Each year, the justice took clerks from each chambers, starting with his own, out for this Italian delicacy.
The clerks generally approached the lunch with some culinary trepidation — whether worldly or not, few of us had eaten anchovy pizza, and even fewer looked forward to the tasting. With a deep dislike for anchovies, I sought a judicial workaround. When we sat down for lunch and the justice ordered “anchovy pizza for everyone,” I told him I could not join in.
“Why not?” he asked.
“Thought you would know this, justice, but Jews don’t eat hairy fish,” I replied. “Look it up, it’s true.”
For the moment, at least, the religion clause provided me a safer haven with the justice than some recent petitioners before the Court had enjoyed. After lunch, we returned to chambers. A few hours later, the justice called me to his office. He smiled and bellowed, “I looked it up, it’s not in there. You made that up.”
“Oh,” I replied, “it must be an interpretation, then.”
— Andrew Nussbaum, a corporate partner at Wachtell, Lipton, Rosen & Katz in New York City, clerked for Justice Scalia during the Court’s 1992–93 term.
Lee Liberman Otis
I clerked for Justice Scalia in his first year on the Supreme Court, October term 1986. At some point during that year, the Court held a party for Justice William Brennan in honor of his 80th birthday. At the time, Justice Scalia was 50. Justice Scalia had enormous respect for Justice Brennan as a lawyer and they got along famously, notwithstanding some fundamental disagreements.
When Justice Scalia came back from the party, we asked him how it had gone. He said that for the occasion, the clerks had collected all of Justice Brennan’s most important opinions, which took up quite a large table. He said he took one look and deadpanned, “So little time, so much to overrule!” He reported that Justice Brennan roared with laughter.
— Lee Liberman Otis clerked for Antonin Scalia on the D.C. Circuit (1983–84) and the Supreme Court (1986–87) and was a student of his at the University of Chicago Law School. She is currently senior vice president of the Federalist Society. The views expressed here are her own.
The beach our family went to every summer had a convenient Sunday Mass. Unfortunately, that convenience was at the price of reverence. The “church” was an open-air structure, and that made Mass about as reverent as it sounds. With the entire brood to prepare and get out the door, we were inevitably late and always found ourselves standing in the sand outside the church.
One Sunday, my younger brothers and I were standing apart from my parents (i.e., beyond arm’s reach). When the time came for the Consecration, my parents knelt. In the sand. Without support. Or cushions. My brothers and I stood.
When we returned to the cottage after Mass, Dad was waiting for us at the top of the stairs. He proceeded to . . . well, not to scold us and certainly not to yell at us. Rather, he gave us a strong catechesis on the Mass, explaining that no matter who or what kind of man the priest is, he can do something no other man can do: He can change bread and wine into Christ’s Body and Blood. And when he does so, you had better kneel.
Obviously, that scene has stuck with me and has probably had no small part in my own vocation. But the lesson revealed two essential elements of the Catholic instinct my dad possessed. First, the Catholic reverence for the priesthood that survives particular priests. Second, the understanding that, although God has hidden things from the wise and the learned, He has revealed them to the childlike (Matthew 11:25). In his work and in many other areas, my dad was wise and learned (indeed, more so than many priests). But in turning to the things of God, he knew he needed to become childlike. And kneel in the sand.
— Father Paul Scalia is a priest of the Diocese of Arlington and serves as the episcopal vicar for clergy.
John P. Schmitz
Justice Antonin Scalia was a great friend of Europe and an expert on European legal traditions. After Harvard Law School, he traveled to Switzerland and Germany, studying European constitutions including the German Basic Law.
Beginning in 1992, Justice Scalia met regularly with European legal experts in the Mentor Group’s Forum for EU–U.S. Legal-Economic Affairs, founded by Thomas Kosmo. At the 2003 Rome Forum, Italian senator Giuliano Amato, vice president of the Convention on the Future of Europe, asked Justice Scalia to share his observations on the new EU constitution.
The draft EU constitution lay before Justice Scalia in three volumes, totaling over a thousand pages. Senator Amato admitted that very few Europeans had actually read the entire draft.
Justice Scalia pulled out his pocket U.S. Constitution. “We prefer a shorter Constitution.”
The 50 new European fundamental rights included some familiar to Americans, such as freedom of speech and religious liberty, as well as rights to collective bargaining, maternity leave, and even “good administration” of the EU, provoking some laughs.
Scalia explained that there is a tradeoff between the number of fundamental rights protected by an unelected judiciary and the ability of that judiciary to protect those rights over time, using its limited “capital” to stand up to elected branches and public opinion. The small number of “truly” important rights was key to the Court’s success in the American experience.
The Europeans loved it.
— John P. Schmitz clerked for Antonin Scalia on the D.C. Circuit (1982–84) and served as deputy counsel to the president (1989–93). He has been a member of the Mentor Group Advisory Board since 2000.
A year or two after my clerkship with Justice Scalia, I sent his secretary a draft of a book review I was writing. The book was about constitutional law, and I planned to identify myself as having clerked for the justice. I wanted to know whether that was okay with him. Thirty minutes after I e-mailed the document, my phone rang. It was the justice. “Dan, I’ve read your review,” he declared without prefatory chit-chat, “and I have a few suggestions.” He proceeded to give me various edits — catching a typo here, fixing a grammatical mistake there, and otherwise suggesting ways I might restructure or improve the review. He pointed out where I had unthinkingly accepted a premise of the argument I was trying to refute. Each comment made the draft better. Now, the average person would have taken a quick peek at the review and sent a “no objection” e-mail, which was all I expected. Not Justice Scalia. Maybe it was a slow day in chambers; maybe the draft’s inadequacies were more than he could bear. But it mattered enough to the justice, as it almost always did, for him to engage — and thereby to improve. He gave a damn. And we are grateful.
— Daniel Sullivan clerked for Justice Scalia during the Court’s 2009–10 term.
A few years after my clerkship ended in 1997, having settled into private practice, I summoned the courage to invite the justice to join me on a mule-deer hunt in western Colorado. The justice accepted the invitation, took a respectable buck, and thoroughly enjoyed the experience of hunting big game in the West.
In 2003, I again invited the justice to join me for a hunt in Colorado, this time for elk. We’d had a long, unsuccessful hunt, but just as we were leaving the hunting area, a herd of elk crossed the road right in front of us. After a short pursuit and some excellent long-range shooting by the justice, a magnificent bull elk lay at our feet. Later nicknamed “Leroy,” that beautiful elk thereafter adorned the walls of the justice’s chambers in the Supreme Court.
In the years to follow, the justice and I went on dozens of hunting and fishing outings together all over North America. One of our more memorable hunts was in 2005, when we hunted pronghorn together in Wyoming. Our host was Tony Rose, a colorful Wyoming lawman who was then the U.S. marshal for the district of Wyoming.
That night, we ate steaks, drank whisky, and told tales around an open campfire under a clear, star-filled night. The justice loved every moment of it. He was certainly fond of whisky and always had a good joke to tell. The justice did have to rough it on that trip. He, the marshal, and I shared a single, canvas-wall tent with cots and sleeping bags. But the joke was on me. When we retired for the night, the justice and the marshal immediately passed out. As I lay in the middle cot trying to fall asleep, the snoring began. First, to my right, the justice. Then, to my left, the marshal. Faint at first, it rapidly escalated into a thunderous cacophony. I had never heard snoring so loud, and haven’t again to this day. There I lay, wondering: Could I possibly prod a Supreme Court justice, or yell at him to “shoosh”?
It was a long night.
— Glen Summers, a partner in the law firm Bartlit Beck Herman Palenchar & Scott, clerked for Justice Scalia during the Court’s 1996–97 term.
Jeffrey S. Sutton
Justice Scalia administered the oath of office to me when I became a federal judge. At the luncheon before the ceremony, he charmed everyone, first by needling me, then by poking fun at himself. At one point, after acknowledging he was an only child, he said, “There’s a reason why I am the way I am.”
At the ceremony, he offered an insight into why he was the way he was as a judge. He did not talk about textualism or originalism. He instead devoted his remarks to the words of the oath and the history behind them: that judges, among other commands, must commit to “administer justice without respect to persons” and perform their duties “impartially.”
I can’t say I appreciated the full import of what he was saying at the time. Only after a few years on the bench would the point emerge. What makes adherence to the oath challenging is not the near-term task of dispensing equal justice to the people in front of you. Rather, it’s standing by that rule of decision down the road. It’s one thing to say that justice is blind; it’s quite another to prove it in the next case — when the judge does not know who the next parties will be or what their cause will concern.
Justice Scalia was not the kind of person to take his own oath lightly. And he set a high bar for the rest of us in identifying principled grounds for deciding seen and unseen future cases alike.
— Jeffrey S. Sutton clerked for Justice Antonin Scalia and is a judge on the United States Court of Appeals for the Sixth Circuit.
I first met Justice Scalia when I arrived at the Court in October 1991. I had known him only by what I had read by and about him. The seeds of my deep affection for him were planted in those early days when he joined my separate writings and thus ensured that I was not alone in receiving the criticism that was sure to come. Over the nearly quarter of a century that we were colleagues, we grew to trust and love each other.
He cared deeply about the oath that he had taken and what it required of him.
He cared deeply about the oath that he had taken and what it required of him. Whether it was wrestling with difficult legal principles or syntactical nuances, he gave it his all. This applied to both his work and that of his colleagues. Even when we were on opposite sides of cases, he would offer suggestions that he thought would improve an opinion with which he disagreed.
I am eternally grateful that my friend Antonin Scalia was a member of the Court when I arrived. His presence made a difficult transition less so. I certainly know I am better for having worked with this good man. And I know our country, our Constitution, and our legal system are better for his outstanding tenure on the bench.
— Clarence Thomas is an associate justice of the Supreme Court of the United States.
Yes, Justice Scalia loved hunting and fly-fishing, opera and Shakespeare, anchovy pizza and red wine. But while those all brought him real pleasure, the two deep loves that sustained him, in good times and in bad, were his wonderful wife Maureen and the Catholic faith they shared.
During one very low point of the dismal term I clerked for him, when some of his colleagues were engaging in rampant lawlessness, I asked him, somewhat rhetorically, how he could possibly put up with it all, year after year. Instead of telling me to stop griping, he answered: “Maureen.”
Similarly, while he was rightly proud of his nine children, whenever anyone complimented him for their achievements and virtues, he would say, “Maureen deserves all the credit.”
The boss was quiet about his faith in chambers. But on one Holy Day of Obligation on which he detected that I was buried in work and hadn’t yet gone to Mass, he gave a gentle nudge by quoting the Gospel passage, “What will it profit a man if he gains the whole world, but loses his soul?”
From Justice Scalia’s two loves, I was inspired to deepen my embrace of the faith and to find my own Maureen.
— Edward Whelan, the president of the Ethics and Public Policy Center and a regular contributor to National Review’s Bench Memos blog, clerked for Justice Scalia during the Court’s 1991–92 term.
Justice Scalia will rightly be remembered for his brilliant mind, acerbic pen, and his forceful advocacy for textualism and originalism — qualities that changed how lawyers and judges alike approach the law. But I will always associate the justice with pizza. A.V. Ristorante Italiano closed three years before my clerkship began, so lunches with the justice the year I clerked were missions to find an adequate, authentic pizza in D.C. Those lunches followed a familiar pattern. Being a proud Italian American, Justice Scalia would always order a Pizza Napoli with extra anchovies. My co-clerks and I, much to the justice’s dismay, ascribed to a different rule — fillets of salty fish and pizza do not belong on the same plate — and ordered separately. The pizzas would arrive at our table, and regardless of the restaurant, the justice would eye his with a disappointed grimace and an exasperated sigh. “Not nearly enough anchovies,” he would tell the waiter, and soon an entire bowl of anchovies would appear at the table. Justice Scalia always ate every last one. I look forward to biting into a warm slice soon and reflecting on the most consequential justice in decades. I might even ask for an anchovy.
— Jason Wilcox, a partner at Kirkland & Ellis LLP in Washington, D.C., clerked for Justice Scalia during the Court’s 2010-11 term.
Like many others, I knew Antonin Scalia early on as a uniquely talented lawyer and public servant and, later of course, as one of this nation’s all-time greatest justices. But, perhaps like not so many others, I also knew him as a fierce competitor on the tennis courts. For more than four decades, we regularly battled away across the net. And, as might be expected, he was always a jolly but highly combative player—determined to win but gracious and good-hearted when he didn’t.
In recent years, most of our epic encounters took place at the Washington Golf and Country Club in Arlington. And I always was amused at the reactions of some of our club members when they spotted the good justice wearing tennis whites rather than black judicial attire (and especially so on the day that Bush v. Gore was announced). Needless to say, our mutual court asides always pertained to questioned line calls and not to matters before the Court, including on that fateful occasion.
Like everyone else, I will miss Nino—and our humble matches—tremendously. Yes, he was great. But he also was just fun to be around.
— Richard Wiley is a founding partner of Wiley Rein, a Washington, D.C., law firm, and a former chairman of the FCC.
Like many clerks before and after, we had lunch with the justice at A.V. Ristorante several times. I had pizza and tiramisu with my kids a couple of days after the justice passed, and I told them of sharing anchovy pizza with him and tiramisu (it means “pick me up,” he would always remind). One day, when we were leaving A.V. with him, one of us pointed to all of the D.C. “celebrities” with photos on the wall and asked why the justice didn’t have his photo up there. He pointed to one seemingly at random and said, “That’s why.” We studied it and asked, “Who’s that?” He said, “That reaction is why.” I think he had those feelings. Have I done things worthy of remembrance? Have I accomplished what I was supposed to accomplish? There is even some of that in his portrait at the Court. The outpouring after his passing suggests he need not have ever doubted his significance, and in the next many years we will know. He would not be the first great man who did not live to see the full impact of his life’s work.
— Eric Wolff clerked for Justice Scalia during the Court’s 2000–01 term.