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.