Introduction

Justice Scalia never liked tributes or accolades. He would tell his law clerks not to get syrupy at the annual reunion, where the clerks from that year’s term would present him with a bound volume of his opinions from the previous term, accompanied by a speech. During the term that I clerked for him, we took his instruction to heart and presented a roast that pushed against what I thought at the time were the outermost boundaries of permissible irreverence—only to see those boundaries far exceeded by law clerks in later years. The Justice loved all of it, and the annual pasquinade was always (at least for me) the highlight of our once-a-year gatherings. I imagine there are other justices who would prefer a raucous lampoon over stately adulation, though probably not a majority.

Justice Scalia didn’t want eulogies at his funeral either, partly because they distracted from what he thought should be the principal focus of a funeral service,1 but also because he never wanted (or needed) fawning acclamations to begin with. So I cannot think of a more fitting way to honor Justice Scalia than with this collection of essays, solicited from his admirers and critics alike, written not to eulogize but to reflect on his life and his writings, and to continue debating the ideas that he so powerfully advanced during his thirty-year tenure on the Court.

My perspective on Justice Scalia is shaped by the fact that I was fortunate to have worked for him for one year, and even more fortunate to have known him as a mentor and a friend. People often ask me what Justice Scalia was like, and when they do I always tell them the one thing that I most want people to know about Justice Scalia: he had a remarkably open mind. I say that not to imply that other members of the Court are closed-minded or less open-minded than Justice Scalia was, but because an open mind is (in my view) the most important character trait of a good judge, and because it is a quality that most people do not instinctively attach to Justice Scalia. If anything, I suspect that most people attribute the opposite to Justice Scalia and perceive him as a dogmatic jurist, which they surmise from his outspoken commitment to original-meaning textualism and his (occasionally) scorching opinions. But that’s not the view that anyone who knows Justice Scalia has of him—and it’s not the view that anyone else should have either.

The public record is enough to refute this caricature. Justice Scalia was aware of and publicly acknowledged the intellectual challenges that confront originalist theories of interpretation, having famously defended originalism as “the lesser evil.”2 He candidly admitted that originalist interpretation will sometimes require daunting historical inquiries that generalist judges are ill equipped to undertake,3 and that full-throated originalism will sometimes produce results that seem normatively horrifying by today’s standards.4 It takes not only open-mindedness but also integrity for a Supreme Court justice to publicly recognize the weaknesses in the interpretive theory that he espouses, rather than posing as an oracle of the law or perpetuating the idea that the Supreme Court’s finality gives its members a claim to infallibility.

Justice Scalia’s decision to frankly admit the challenges that face originalist theory—and to address them as best he could—contrasts with other originalists who try to make these problems disappear, sometimes by propagating law-office history that offers simplistic or incomplete accounts of a complex historical record, sometimes by defining the “original understanding” at a level of generality high enough to give judges the flexibility to avoid normatively unappealing outcomes whenever they want to. I’ve always found Justice Scalia’s candor about originalism refreshing. There is no shame in admitting that one’s preferred interpretive theory has drawbacks—all theories of interpretation do—and choices among theories of interpretation present trade-offs, like all other choices in life. The more that an interpretive theory constrains judicial discretion, the more it will produce outcomes in individual cases that judges find normatively unattractive. And the more that an interpretive theory empowers judges to avoid untoward results in particular cases, the more it liberates judges to do as they please, and the more it runs the risk that judges will make the law worse than what it would have been under a regime of rigid formalism. There is no “perfect” interpretive theory that enables judges to avoid morally unacceptable results in individual cases, while constraining judicial discretion enough to erase the legitimacy concerns and the risk of judicial backsliding that arise when judges depart from the ordinary or original meaning of constitutional language.

Justice Scalia’s open-mindedness was equally on display inside his chambers. He sought to hire law clerks who disagreed with him,5 wanting to avoid the flabby groupthink that can set in when everyone in the room thinks alike.6 He liked to be challenged, especially by his clerks. And he loved a good argument—emphasis on the word good. Bad arguments, he once said, deserve a “clunking over the head”7—and clunkings were frequently administered in his chambers and in his opinions. But no one should mistake intolerance for bad arguments with closed-mindedness toward good ones. It wasn’t unusual for the Justice to change his mind about a case, and it wasn’t unusual for him to support a liberal result if he thought it was supported by text or historical evidence.8

The clerk conferences that the Justice held to discuss the Court’s cases were wide open and occasionally raucous.9 Everyone felt free to express their views and to challenge the views held by others. And the Justice’s firm methodological convictions gave us an anchor for how to assess the arguments made by counsel, and how to present our own arguments to the Justice. I sometimes wondered what our discussion of the cases would have been like if the Justice had subscribed to the gestalt pragmatism that drives decision-making in some of the other chambers. In many of the cases that we handled during the year that I worked for him, the case law on which the parties relied did not clearly resolve the issue one way or the other. Each side trotted out cases that were helpful to their client’s position—but that could nevertheless be distinguished if the Court wanted to do so. And in the one case in which the Supreme Court’s precedent did clearly and unambiguously resolve the issue, the justices opted to overrule their precedent and chart an entirely new course.10

I thought about what it would be like to try to persuade a justice who regarded text and original meaning as mere factors to be considered alongside judicial precedent, policy considerations, legislative history, or whatever else might be in the mix. These factors invariably pull in different directions by the time a case reaches the Supreme Court—so how is it possible to falsify a person’s choice among these competing considerations? In the Scalia chambers, there was an algorithm for dealing with those situations: the original meaning of legal enactments should control, unless a well-settled precedent of the Court compels a different outcome.11 This standard is far from perfect,12 and critics of Justice Scalia note that he did not always live by this rule: sometimes he voted in ways that appeared to extend nonoriginalist or atextual judicial precedent into new situations.13 But at least Justice Scalia had a methodology by which others could assess his rulings for consistency. And he had enough of an open mind to follow that methodology—in most cases even if not in all—and he did so even when it led to results that contradicted his initial intuitions or ideological beliefs.

Justice Scalia had many other admirable qualities. I’ve never known a lawyer who held himself to higher standards in his use of the English language. Justice Scalia understood that the written and spoken word is a lawyer’s stock in trade, and he demanded perfection from himself in matters of grammar, usage, punctuation, and pronunciation. He encouraged others to hold themselves to those same high standards,14 but always in a good-natured way. More than once my colleagues drew his rebuke by pronouncing “applicable” with stress on the second syllable rather than the first, and the Justice would show us how he felt about this pronunciation by blurting it out with the slobbering, exaggerated lisp of Daffy Duck. But mostly he led by example, and he never behaved like a snoot even if his status and knowledge gave him the prerogative to do so.

And I’ve never known a lawyer who had higher standards of rigor in his use of sources. Justice Scalia personally cite-checked every one of his opinions before it went out the door. The chambers had an established routine for this process: the law clerk assigned to a case would gather all the volumes cited in the opinion and place them on a cart, and then sit down with the Justice as he checked each citation against the original source, one by one. This ritual was known as “booking” within the chambers, and it could take anywhere from a few hours to more than a day depending on the length of the opinion. It was not fun—I have never encountered a lawyer who enjoys cite-checking—and I found it remarkable that Justice Scalia would devote so much of his scarce time to this dreary and unstimulating task. But it was a mark of his unswerving integrity: no opinion under his name would ever mischaracterize a source, either by inadvertence or intent. In an era when lawyers regularly quote sources out of context and peddle misleading half-truths when describing factual records and legal authorities, Justice Scalia insisted on scrupulous accuracy and devoted thousands of hours to ensuring that each of his opinions properly represented every single source on which they relied.

All of this leads me to confess that I cannot put on the pretense of a neutral and disinterested observer when discussing Justice Scalia. For those who have clerked for any judge, familiarity tends to breed admiration, and that is especially true in my case. But with that disclaimer out of the way, I will first offer some brief remarks on Justice Scalia’s writing. Then I will consider why his efforts to reshape constitutional law along originalist lines were less successful than his revolutionary transformation of the Court’s approach to statutory interpretation. Finally, I will conclude by revisiting the challenge that Justice Scalia threw down to the living-constitution mindset.

  • 1. See Antonin Scalia, Associate Justice of the Supreme Court of the United States, Letter to Dr. James C. Goodloe (Sept 1, 1998), archived at http://perma.cc/D78T-J7QT.
  • 2. See Antonin Scalia, Originalism: The Lesser Evil, 57 U Cin L Rev 849, 856 (1989) (acknowledging that originalism is “not without its warts”).
  • 3. Id at 856–61.
  • 4. Id at 861–62.
  • 5. See Ian Samuel, The Counter-Clerks of Justice Scalia, 10 NYU J L & Liberty 1, 2 (2016); Gil Seinfeld, The Good, the Bad, and the Ugly: Reflections of a Counterclerk, 114 Mich L Rev First Impressions 111, 113, 117 (2016).
  • 6. See Nicholas Quinn Rosenkranz, Intellectual Diversity in the Legal Academy, 37 Harv J L & Pub Pol 137, 138 (2014).
  • 7. See Joan Biskupic, ‘All Friends’ on Court, Scalia Says (Wash Post, Mar 27, 1993), archived at http://perma.cc/27JE-JM6M.
  • 8. For a few of the many examples, see Maryland v King, 133 S Ct 1958, 1980–90 (2013) (Scalia dissenting); Blakely v Washington, 542 US 296, 298 (2004) (Scalia); Crawford v Washington, 541 US 36, 68–69 (2004) (Scalia); Hamdi v Rumsfeld, 542 US 507, 554–79 (2004) (Scalia dissenting); BMW of North America v Gore, 517 US 559, 598–607 (1996) (Scalia dissenting); Maryland v Craig, 497 US 836, 860–70 (1990) (Scalia dissenting).
  • 9. One of my former colleagues reports that “screw you” was once offered as a rejoinder during a clerk conference. See Seinfeld, 114 Mich L Rev First Impressions at 114 (cited in note 5).
  • 10. See Lawrence v Texas, 539 US 558, 578 (2003), overruling Bowers v Hardwick, 478 US 186 (1986).
  • 11. See, for example, Scalia, 57 U Cin L Rev at 861 (cited in note 2) (“[A]lmost every originalist would adulterate [originalism] with the doctrine of stare decisis.”); Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 138–39 (Princeton 1997) (Amy Gutmann, ed) (“Originalism, like any other theory of interpretation put into practice in an ongoing system of law, must accommodate the doctrine of stare decisis; it cannot remake the world anew.”); id at 138 (observing that the Supreme Court’s First Amendment doctrine “has developed long-standing and well-accepted principles . . . that are effectively irreversible”).
  • 12. The principal objections to Justice Scalia’s originalism-with-exceptions-for-stare-decisis proceed along the following lines: First, by accommodating stare decisis as a “pragmatic exception” to a judge’s otherwise-binding obligation to follow the original meaning of constitutional enactments, Justice Scalia appears to concede that consequentialism is the ultimate touchstone of judicial decision-making. Scalia, A Matter of Interpretation at 140 (cited in note 11) (emphasis omitted). See also id at 139 (“The whole function of [stare decisis] is to make us say that what is false under proper analysis must nonetheless be held to be true, all in the interest of stability.”); Scalia, 57 U Cin L Rev at 864 (cited in note 2) (“[I]n a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging.”). But if consequentialist concerns can trump original meaning in these situations, then why not in others? There are many situations in which a decision to follow the original meaning of the Constitution will produce normatively undesirable consequences, so it’s not apparent why consequentialist concerns should prevail only when supported by settled judicial precedent.

    The second objection is that Justice Scalia’s accommodation of stare decisis undercuts originalism’s ability to constrain judicial discretion because there is no meta-rule for deter­mining when a judicial precedent should be extended, distinguished, or overruled. See Mark Tushnet, Taking the Constitution Away from the Courts 156–57 (Princeton 1999) (criticizing “conservative originalists” for opportunistically invoking stare decisis to preserve nonoriginalist rulings, such as Brown v Board of Education of Topeka, 347 US 483 (1954), while refusing to accede to other nonoriginalist rulings, such as Roe v Wade, 410 US 113 (1973)); David A. Strauss, The Living Constitution 17 (Oxford 2010) (arguing that “fainthearted” originalism that accommodates stare decisis removes constraints on judicial discretion and allows judges to become “sometime-living-constitutionalists”).

  • 13. See generally, for example, Bush v Gore, 531 US 98 (2000); Seminole Tribe of Florida v Florida, 517 US 44 (1996); Adarand Constructors, Inc v Pena, 515 US 200 (1995); Texas v Johnson, 491 US 397 (1989). Some have suggested that Justice Scalia’s insistence on colorblind university admissions policies is another example of his willingness to elevate nonoriginalist doctrine over the text and original meaning of the Equal Protection Clause. See Grutter v Bollinger, 539 US 306, 349 (2003) (Scalia concurring in part and dissenting in part); Gratz v Bollinger, 539 US 244, 270–71 (2003); Seinfeld, 114 Mich L Rev First Impression at 118–20 (cited in note 5); Cass R. Sunstein, In Memoriam: Justice Antonin Scalia, 130 Harv L Rev 22, 27 (2016). But don’t forget Title VI of the Civil Rights Act of 1964, Pub L No 88-352, 78 Stat 241, which unambiguously prohibits any “program or activity” that receives federal funds from discriminating “on the ground of race.” Civil Rights Act of 1964 § 601, 78 Stat at 252, codified at 42 USC § 2000d. Justice Scalia’s votes to limit university affirmative-action programs were undeniably consistent with his textualist methodologies, given the language of Title VI, and that remains true even if the equal-protection rationale on which he relied was incompatible with textualism or originalism. See Jonathan F. Mitchell, Textualism and the Fourteenth Amendment, 69 Stan L Rev 1237, 1307–10 (2017).
  • 14. Making Your Case, which Justice Scalia coauthored with Professor Bryan A. Garner, provides a treasure trove of sources related to grammar, style, and pronunciation for any lawyer seeking to improve in those areas. See Antonin Scalia and Bryan A. Garner, Making Your Case: The Art of Persuading Judges 62–64, 145, 213–18 (Thomson/West 2008).

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