Magazine | March 14, 2016, Issue

A Justice in Full

A symposium on Antonin Scalia

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.

Hadley Arkes

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.

Whoever composed the company at table, everything would end well when Father Malcolm Kennedy, a seasoned New Yorker, took a seat at the piano. We would gather around, and then Nino and I and others would join in belting out those Broadway tunes we grew up with in the ’50s — Rodgers and Hammerstein, South Pacific, Carousel, and all the others. And one could almost believe, at the end of such an evening, that with good will, everything would come out all right.

– Mr. 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.

Richard Bernstein

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.”

– Mr. Bernstein is a partner at Willkie Farr & Gallagher, and a Democrat.

Stephen Breyer

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.

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.

– Mr. Breyer is an associate justice of the Supreme Court of the United States.

Daniel Collins

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.

– Mr. Collins clerked for Justice Scalia during the Court’s 1991–92 term and is now an attorney in Los Angeles.

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.”

– Mr. Dershowitz is a professor emeritus at Harvard Law School.

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.

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.

– Mr. 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.

– Mr. 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.

Andrew Nussbaum

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.”

– Mr. 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.

Paul Scalia

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 Scalia is a priest of the Diocese of Arlington and serves as the episcopal vicar for clergy.

Glen Summers

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.

– Mr. Summers, a partner in the law firm Bartlit Beck Herman Palenchar & Scott, clerked for Justice Scalia during the Court’s 1996–97 term.

Clarence Thomas

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. 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.

– Mr. Thomas is an associate justice of the Supreme Court of the United States.

Edward Whelan

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.

– Mr. 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.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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