It’s hard to believe it has been ten years since we lost Justice Antonin Scalia. His death on February 13, 2016, came as a shock. Not just because his was only the second death of a sitting justice in the over six decades since Justice Robert Jackson died in 1954. It was just so hard to believe that someone so vibrant was suddenly gone. That is not a typical thing to think about someone who was just a month away from his 80th birthday. But a lot of people reacted the same way. The sharp-witted, larger-than-life lion of originalism was still at the top of his game, whether it was dominating oral argument or producing the best written judicial opinions of modern Supreme Court history.
All of that was suddenly over. And the sadness of the event gave way to horror at the prospect of President Obama filling Scalia’s seat. That could prove to be a crushing blow to the originalism that had been on the rise at the Court. As it was, the balance of the Supreme Court’s term would see 4–4 deadlocks in cases including Friedrichs v. California Teachers Association (a precursor to Janus v. AFSCME (2018) on forcing public-sector workers to pay for a labor union’s speech) and United States v. Texas (the challenge to Obama’s rewrite of immigration law in DAPA).
I said at the time of Scalia’s death that if Obama’s nominee was not confirmed, and a Republican president were elected, and the Republicans held the Senate, and they were then able to nominate and confirm someone worthy of the seat, someone should submit the whole sequence as the first miracle for Justice Scalia’s canonization. Of course, that’s exactly what happened. I guess someone should talk to Bishop Michael Burbidge, of Scalia’s home Diocese of Arlington, Virginia, about opening a cause.
The opportunity to clerk for Justice Thomas when I did carried with it the added privilege of seeing Justice Scalia’s work up close. On one occasion, my co-clerks and I took Justice Scalia out to lunch. Although A.V. Ristorante, a favorite of his, had already closed, we were able to enjoy a lovely Italian meal over a bottle of red wine as the justice talked about his quest to hunt every different type of American turkey.
That and other memories came back to me as I stood in the long lines in front of the Court and around the block to pay my respects as he was lying in repose, his former clerks standing vigil. It was very moving.
I brought all of my children to the justice’s funeral Mass at the Basilica of the National Shrine of the Immaculate Conception because I wanted them to be part of history. The homily, delivered by his son, Fr. Paul Scalia, is still a classic. As he introduced it, he said:
We are gathered here because of one man, a man known personally to many of us, known only by reputation to even more. A man loved by many, scorned by others. A man known for great controversy, and for great compassion.
That man, of course, is Jesus of Nazareth.
Ten years on, his influence is visible in the legal movement he helped build, in how he transformed the way we think about the law, and in the Supreme Court’s originalist jurisprudence. I’ll have much more to say about Justice Scalia’s principles and legacy next month, when we mark what would have been his 90th birthday with a special series.
For today, I’ll just say: We miss him. The Court misses him. The country misses him.