Saturday, February 13, 2016

A Personal Remembrance of Justice Scalia

by Michael Dorf

I entered law school in the fall of 1987, just after Justice Scalia had completed his first Term on the Court. I felt his presence constantly in my study of and work in constitutional law over the last nearly-30 years. I'll say a few brief words about his enormous legacy and then add a personal remembrance.

I have little doubt that Justice Scalia will be remembered chiefly for moving the conversation about statutory interpretation--in the direction of textualism--and constitutional interpretation--towards originalism. I have almost always found myself on the other side of these debates, but I nonetheless appreciate the magnitude of his influence. He redefined both fields.

I also think that Justice Scalia will be remembered as one of the Supreme Court's great prose stylists. It's easy to focus on his provocations ("argle bargle", "kulturkampf", "jiggery-pokery"), but doing so obscures the clarity and sheer interestingness of his writing more generally. To my mind, as a legal writer, Justice Scalia belongs in the pantheon with John Marshall, Joseph Story, Oliver Wendell Holmes, Jr., Louis Brandeis, and Robert Jackson. (I omit Cardozo from that list because his best work was as a state judge.)

Justice Scalia was undoubtedly a much more important figure for me than I was for him, but on the few occasions that our paths crossed directly, I found him a charming interlocutor. When I was a law clerk for Justice Kennedy, Justice Scalia joined me and my co-clerks for a long lunch one day. He was animated in discussing just about everything, from opera to wine to politics.

Pretty early in my career as a law professor, Justice Stevens cited an article of mine in support of a result he and a majority of the Court supported. Justice Scalia responded that the majority was obviously wrong and lacked any basis in case law: For the "head snapping proposition" that Justice Stevens endorsed, Justice Scalia marveled, "he relies upon no less weighty authority than a law review article by Michael C. Dorf." Bemused that Justice Scalia had cited me as a kind of anti-authority, I wrote him a note thanking him, stating that I subscribe to the adage that there's no such thing as bad publicity. He sent back a very gracious hand-written letter, tongue-in-cheek stating that it was, after all, Justice Stevens who had singled me out.

Since then, I have seen Justice Scalia from time to time at conferences and the like. He was always his effusive self. To this day, I follow his advice in selecting a good Italian red wine.

There will be time enough for discussions of who will succeed Justice Scalia, whether anyone will be confirmed before the presidential and Senate elections, and the impact if any, of a Supreme Court vacancy on those elections. I will no doubt have something to say about these subjects. For now, however, I just want to extend my condolences to the friends and family of Justice Scalia. He was one for the ages.


Jack W. said...

As always, well written and much appreciated.

barcrunchsub said...

As good a night to ask as any - what was his advice in selecting a good Italian red wine?

Joe said...


Michael C. Dorf said...

Here are wine two tips from Justice Scalia:

1) If you can afford it, buy a good barolo.

2) You will drink wine with food, so when tasting it, eat something.

andy grewal said...

Thank you for sharing your memories.

Shag from Brookline said...

Yes, it is a time for (good) wine (with food) and not for (political) whine. R.I.P. and sympathies to his loving family.

Shag from Brookline said...

After watching several of the Sunday morning political talk shows and the discussions of the politics of the demise of Justice Scalia, I thought of Mike's comment on wine tips he received from the Justice, to get an idea what Italian wine would best be served with lame duck. I can picture Justice Scalia smiling in pondering this. Muscadet?

David Ricardo said...

Minority Report

If indeed Justice Scalia was highly articulate, a consideration that future generations will come to doubt once the sentimentality of his life and demise has itself died then that ability was used mostly to deny basic rights and to support arrogance, condescension and a mean spirited philosophy cloaked in so-called conservatism. Shakespeare spoke of Scalia "the evil that men do lives after them" His opinions in the area of freedom of religion and 2nd amendment rights are so far from conservative that they embody the very definition of
judicial radicalism.

Nothing speaks more accurately about his legal skills than the fact that apparently the best here that can be said of the Justice is that he knew how to pick a good red wine. And I would like to think that my post is securely in the tradition of Justice Scalia's opinions, inconsiderate and inappropriate and maybe even largely incorrect.

Joe said...

"best here that can be said of the Justice is that he knew how to pick a good red wine."

Other than his writing skills, graciousness, sense of humor, passion and willingness to respond with verve to people he disagreed with.

He had his negatives but on the day he died etc. some try to be nice. But, Scalia was not shy about saying when he thought people were wrong. So, criticism of him, blunt and visceral, would seem to be a proper honoring of his memory.

Shag from Brookline said...

Yes, I realize Justice Scalia would have pointed out that Muscadet is a French white wine, and a mere table wine at that. Perhaps French wines are trustier than Italian Virgin Olive Oil - and many Italian red wines. (Source: 60 Minutes.)

Jamal Greene has an appraisal OpEd at the NYTimes. Some years back I proposed Prof. Greene as a Court candidate to offset Clarence Thomas. Greene has authored several articles challenging originalism. Under the circumstances, Greene could be a Two-fer.

We've had a lot of political dysfunction in recent years that has extended beyond the elective branches to the judicial. The political reaction to Justice Scalia's demise have been instantaneous. Justice Scalia is at peace. I hope his family will be permitted to grieve in peace for the man they loved. Even those of us who have disagreed with Justice Scalia in his Court role can celebrate his life with his family, to ease their loss. There is plenty of time later on to critique his career on the Court.

Doug said...

"my mind, as a legal writer, Justice Scalia belongs in the pantheon with John Marshall, Joseph Story, Oliver Wendell Holmes, Jr., Louis Brandeis, and Robert Jackson. (I omit Cardozo from that list because his best work was as a state judge.)"

Not sure why state judges' opinions can't be considered legal writing....

David Ricardo said...

It is hard, if not impossible for persons like myself to be charitable about Justice Scalia when among other things he used his position to deny those on death row the right to a review of their conviction and sentencing when new evidence has emerged, when evidence of inadequate counsel was overwhelming, when technical items such as failing to meet a filing deadline by a small degree by an attorney meant denial of appeal etc. We will never know whether or not innocent people were executed, but we do know that the probability of that happening was substantially increased by the efforts of Justice Scalia.

Finally, note the second paragraph of the quote in today's post by Mr. Dorf from Ronald Dworkin. Does it not fit Justice Scalia exactly, and is it a sub-concious commentary by Mr. Dorf on Justice Scalia?

Michael C. Dorf said...

DR is undoubtedly right that Dworkin had folks like Justice Scalia in mind, but I didn't! I started on today's post on Friday, before news of Justice Scalia's death. (I tweaked the second paragraph before posting.)