During last month’s joint AEI-EPPC symposium on Justice Scalia’s extraordinary legacy ten years after his death, I received a special surprise. I was moderating the conversation on the last panel, “Antonin Scalia, the Writer,” between my friends Christopher J. Scalia, the justice’s youngest son, and Sixth Circuit chief judge Jeffrey Sutton. (Video here.)

I was delighted to learn from Chris early in the conversation that the literary theorist and legal scholar Stanley Fish, in his book How to Write a Sentence, had found in Scalia’s dissent in Lee v. Weisman (1992) one of his all-time favorite sentences. The justice authorized each of his clerks to take public credit for their work on one opinion during the term they clerked, and Lee v. Weisman was mine. Let’s just say that the sentence that Fish lavishly praised is one that I am also very fond of.

Some context: Scalia was dissenting from a majority opinion by Justice Kennedy that held that the Establishment Clause prohibits nonsectarian invocations and benedictions at public-school graduation ceremonies. Scalia objected that Kennedy invented a malleable test of “psychological coercion.” It is “a sufficient embarrassment,” he observed, “that our Establishment Clause jurisprudence regarding holiday displays has come [quoting one judge] to ‘require scrutiny more commonly associated with interior decorators than with the judiciary’”:

But interior decorating is a rock-hard science compared to psychology practiced by amateurs.

Pardon me as I quote Stanley Fish’s (perhaps overly violent) celebration of this “zinger”:

The sentence is itself a rock thrown at Scalia’s fellow justices in the majority; it is a projectile that picks up speed with every word; the acceleration is an effect of the two past participles “compared” and “practiced”; their economy does not allow a pause or a taking of a breath, and the sentence hurtles toward what is both its semantic and real-life destination: the “amateurs” who are sitting next to Scalia as he spits it out.
The pleasure I take in this sentence has nothing to do with the case or with the merits of either the majority’s or the dissent’s arguments. It is the pleasure of appreciating a technical achievement—here the athletic analogy might be to target shooting—in this case, Scalia’s ability to load, aim, and get off a shot before his victims knew what was happening. I carry that sentence around with me as others might carry a precious gem or a fine Swiss watch. I pull it out and look at it. I pull it out and invite others (who are sometimes reluctant) to look at it. I put it under a microscope and examine its innermost workings.

(Some of you will recall that Chris Scalia and I co-edited the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer and that Judge Sutton and I co-edited The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.)