Bench Memos

Law & the Courts

Introducing The Essential Scalia

Today is the publication date of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, co-edited by Sixth Circuit judge Jeffrey S. Sutton and me.

I’m pleased to see that the volume has already been hailed by an early reviewer, Harvard law professor Jack Goldsmith, as “an extraordinary collection of Justice Scalia’s legal writings—the best introduction to his legal thought.” Addendum [11:30 a.m.]: Yuval Levin praises the book as “fantastic,” “as an education in Americanism, and in the distinct and central place that the law and the Constitution have in the life of our republic”: “Watching [Scalia’s] mind at work is a joy.”

In a generous act of friendship for Justice and Mrs. Scalia, Justice Elena Kagan has contributed a beautiful foreword. Here’s an excerpt:

In the six years Nino and I served together on the Supreme Court, I held to an unwavering rule. When Nino circulated a new opin­ion, I would put aside whatever else I was doing to read it. Whether I expected to agree or to disagree, I wanted to know immediately—not in a day or in an hour but right now—what Nino had to say. I wanted to dive into his inimitable writing style. To marvel at the power of his mind. And most important, to take the measure of his ideas.

I envy the reader who has picked up this book, as I once picked up those opinions, not knowing what he or she will find…. [I]n these last few years, I have missed the enjoyment and excitement—even the exasperation—that came from thinking about Nino’s latest opinion. I doubt that anyone who turns the final page of this book will wonder why.

For years, I likewise would scan Supreme Court rulings as they were issued in order to see whether Justice Scalia had written an opinion in any of them, and I would race to read what he had written. I suspect that many of you reading this did the same.

The Essential Scalia will provide readers that same joy of discovery—or re-discovery. Over the course of his career, Justice Scalia had something interesting and important to say on the entire range of significant legal issues. Whether you bounce around the book or read it from beginning to end, you will run across one gem after another. I’ll offer just a few samples.

Here’s the powerful opening of his dissent from a 1990 ruling (Rutan v. Republican Party of Illinois) in which the majority held that the First Amendment bars a government entity from basing hiring and promotion decisions for low-level employees on party affiliation:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an “appropriate requirement.” It is hard to say pre­cisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where parti­sanship is not only unneeded but positively undesirable. It is, how­ever, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelm­ingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

Here’s a passage in the midst of another First Amendment dissent:

If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a “narrowly tailored” means of pre­venting the obstruction of entrance to medical facilities (the govern­mental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the tentmaker.

From his time as a law professor, here’s his Swiftian “modest proposal” for a “Restorative Justice Handicapping System”:

Under my system each individual in society would be assigned at birth Restorative Justice Handicapping Points, determined on the basis of his or her ancestry. Obviously, the highest number of points must go to what we may loosely call the Aryans—the Powells, the Whites, the Stewarts, the Burgers, and, in fact (curiously enough), the entire composition of the present Supreme Court, with the ex­ception of Justice Marshall. This grouping of North European races obviously played the greatest role in the suppression of the American black. But unfortunately, what was good enough for Nazi Germany is not good enough for our purposes. We must further divide the Aryans into sub-groups. As I have suggested, the Irish (having ar­rived later) probably owe less of a racial debt than the Germans, who in turn surely owe less of a racial debt than the English. It will, to be sure, be difficult drawing precise lines and establishing the correct number of handicapping points, but having reviewed the Supreme Court’s jurisprudence on abortion, I am convinced that our justices would not shrink from the task.

The Essential Scalia is the third volume of Justice Scalia’s work that I have had the privilege of co-editing. The first two were the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (Crown Forum, 2017) and On Faith: Lessons from an American Believer (Crown Forum, 2019).

As you’d gather from the topic, The Essential Scalia will be of special interest to a legal audience. But you don’t have to be a judge, lawyer, or law student to appreciate it. Judge Sutton and I have edited it with the express intention of making it accessible to the attentive reader.

This Thursday is Constitution Day and is also, fittingly, the anniversary of the Senate’s unanimous confirmation of Justice Scalia to the Supreme Court in 1986. In honor of that anniversary, I will provide a signed and inscribed bookplate for The Essential Scalia to anyone who buys the book by the end of the day on September 17. If you would like a bookplate, please send an email to with (1) proof of purchase, (2) your mailing address, and (3) the name of the person(s) to whom the book should be inscribed. (If you buy multiple copies, I will happily provide a bookplate for each.)


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