Bench Memos

Law & the Courts


The new issue of the Harvard Law Review has a set of beautiful tributes to Justice Scalia from Chief Justice Roberts, Justices Ginsburg and Kagan, Harvard law school dean Martha Minow, and law professors (and former Scalia clerks) John Manning and Rachel Barkow. (It also includes an entry by Cass Sunstein.)

The Supreme Court website now features the prepared text of remarks made at the recent Scalia memorial service by former Scalia law clerks Kristin Linsley, Bradford Clark, Paul Clement, and Judge Jeffrey Sutton. (As noted before, it also has the resolutions that the Court accepted and an audio and transcript of the special session of the Court.)

From the Harvard Law Review tribute, here is an excerpt from Justice Kagan:

A hundred years from now, no one will know what many of us on the Court today either wrote or accomplished. That is not true of Justice Scalia. He will go down in history as one of the most significant of Justices — and also one of the greatest. His articulation of textualist and originalist principles, communicated in that distinctive splendid prose, transformed our legal culture: It changed the way almost all judges (and so almost all lawyers) think and talk about the law — even if they part ways, at one or another point, from his interpretive theories. Does anyone now decline to focus first, in reading a statute, on its text in context? Does anyone now ignore the Founders’ commitments when addressing constitutional meaning — or just as important, dispute the need for a viable theory of constitutional interpretation, even if not Justice Scalia’s brand of originalism, to constrain judges from acting on their personal policy preferences? If the answer is no (and the answer is no), Justice Scalia deserves much of the credit. For that reason as well, I am deeply grateful for the opportunity I had, during my first years on the bench, to serve with and learn from this most remarkable jurist.

And from Rachel Barkow:

I imagine Justice Scalia and I probably did not often vote for the same candidates or have similar reactions to cultural change (what I would call progress, he might view as decline). Indeed, we disagreed on some of the most fundamental issues of the day. But we both believed the role of a judge to be distinct from the role of a voter or an elected representative. A judge is not supposed to turn a statute into something it is not just to achieve a particular end, and the Constitution is not a document that resolves every cultural battle. I did not believe it was his job to find all the things I valued in the Constitution, and he did not expect me to figure out a way for him to get to a desired end point. When we approached a constitutional question in a case during my clerkship, we did so as lawyers, not as politicians. And you would be hard-pressed to find a better lawyer to work with than Justice Scalia.…

Justice Scalia did not let legal or political disagreements stand in the way of friendships or of respect for others. It would make no more sense to him for jurists of different views to be enemies off the bench than for players from opposing sports teams to decide friendship was impossible. Justice Scalia respected his colleagues’ skills and recognized what they had in common, even if he hoped to win readers over to his point of view when they faced off against each other. This is not to say that Justice Scalia viewed legal and political disagreements as insignificant. He surely did not. It is instead to say that he also viewed friendship and respect as independently important — and as necessary to developing proper understandings of complex problems.