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Rest in Peace, Justice Scalia
Much has been said and will be said for generations about Justice Antonin Scalia’s legal and intellectual legacy. I have nothing to add but a favorite memory:
Quite a mistake to get on the losing side of an argument with him.
I’m struck as I always am by the puzzle of death. He had nine children and 36 grandchildren. They and his wife, I’m sure, are devastated. He was a devout Catholic, and clearly he believed, and his family believes, that he has not been extinguished by death but at last born into eternity. Still, the mystery will be there: But why can’t he pick up the phone anymore when I call him?
No one could say he left unlived any aspect of a well-lived life. He would have been 80 next month, and we should all hope to stay so young for so long. Clearly he was suffering from none of the typical physical or intellectual deficits of old age. His mind was what it had always been and he died as we all hope we will, in his sleep. He spent his last day at a West Texas ranch in the middle of the Chihuahua Desert. As Emily Schnall describes it,
The storied night sky is full of stars. Over the wide expanse of desert grasslands roam buffalo, wild pigs, mountain lions, Barbary sheep, elk and white-tailed deer. Bird hunts at the base of a bluff on the property include pheasant and chukar shoots, white-tailed dove and blue quail. The hotel’s weapons room provides an “array of rifles, pistols and shotguns, including fine-quality Spanish side-by-sides, and plenty of ammunition” …
He knew that he had imparted to the United States a great and enduring juridical and intellectual legacy. If he had awareness of the imminence of death, it was clearly not until the evening, when he repaired to bed. Only in the morning was the priest summoned to administer the last rites.
I hope that contemplating the life he led and the tranquility of his death brings as much peace to his family as it could in the wake of such a loss.
Published in General, Law
Love the letter. A great jurist and a poet. He spoke some years ago at our state bar convention. He was funny, profound, and eminently human. We gave him a fancy fishing rod and reel, which he loved. Frankly, I think the chance to fly fish was the only reason he came. It’s senseless to ask who will replace him. That person has not, and never will, be born.
The last sentence is a perfect example of advice I give to many writers and often need to take myself. Less is more.
Papa Toad was up late, finishing work for an eager client. I was also up, since I often rise around 3am. Before he hit the sack, as our ships passed in the night and he brushed his teeth, I read him Ross Douthat’s column. Hard to read aloud because I kept choking up.
I spent last evening before I went to sleep listening to Peter and Justice Scalia. The humor and vibrancy. The loss.
It is hard to feel hopeful. Which is why prayer.
Eternal rest grant unto him, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. Amen.
Scalia was the most moral & the funniest man on the Court. That community is not famous for high standards in these matters, admittedly, but it is a high institution &, apparently, the last prophetic oracle of America, so its importance is not to be dismissed. He showed in that exalted office the easy grace of the aristocrat & the compelling moral force of the humane democrat.
Re-reading that gem of a letter (thank you deeply, Claire), I am struck by the signature. I like handwriting, and admire bold legible script.
Thank you, Claire. I’m going to treasure the image of Scalia making that perfect gesture to the reporter who, one can only hope against hope, was chastened by the letter.
Thank you for sharing the great memory Claire. Justice Antonin Scalia did indeed show the best of America by a life well lived. His father, Salvatore Eugene Scalia, was an Italian immigrant from Sicily. As the first Italian-American Justice on the Supreme Court, he fully embraced America and its Constitution. He was a devout Catholic and his son Paul is a Catholic priest.
He stood athwart history by being the “intellectual anchor” of Originalism in Constitutional interpretation.
Godspeed and rest in peace Justice Scalia!
Thank you for the link to the Ross Douthat column. This line stood out for me …
Countless conservative legal eagles who came of age after 1986 will talk about how it was Scalia who inspired them to pursue a career in the law, Scalia who showed them what it meant to be an intellectually fulfilled right-winger in a profession that tilts left, Scalia whose good-humored zest for intellectual combat shaped their own approach to controversy.
This reminds me of the Papacy, and legacy, of Saint Pope John Paul II the Great. He likewise inspired countless young men to pursue a vocation to the priesthood by showing what it meant to be a fearless and good-humored defender of the Truth.
I imagine these two giants embracing in Heaven, and Justice Scalia hearing the words of his Lord … “Well done, good and faithful servant!”
Claire,
Justice Scalia is was both a legal great and a great American. We have lost a great deal and will be struggling to replace him. This morning a very prominent Rabbi who is American but has resided in Israel for a long time spoke. He was standing right next to me at the Minyan. He had been very strong for conservatives over Shabbos as they are the only consistent voices in support of Israel. He had been very liberal when he was young and the experience of living in Israel has changed some of his views.
Unfortunately, it had not changed enough of his views. He equated Scalia’s originalism with literalists who refuse to look at Rabbinic interpretations of the Bible. He sighted Maimonides and others as examples of important new interpretations. When he was through I could not contain it. However much deference or respect he expected, I could not give it to him. I took him to task. His own arguments proved that Scalia’s originalism was exactly what the Rabbis were doing. They didn’t allow themselves to wonder from the text. They justified their arguments by and through the text. Scalia was never against a creative interpretation if it could be justified. Maimonides would have been very simpatico with Justice Scalia. I told the Rabbi flatly that his was a straw man argument. He had denigrated a very positive American legal mind strictly because he was a conservative.
Boy, he didn’t like it. When I got to work I was delighted to find that a very great liberal American legal mind thought extremely highly of Scalia’s originalism.
Alan Dershowitz: ‘Originalism’ Scalia’s ‘Most Fundamental Contribution’
Just another day in my neighborhood.
Regards,
Jim
Scalia will be remembered and revered longer than Oliver Wendell Holmes or Douglas or Brennan or or any of his adversaries. But today’s Washington Post headline tells us how corrupt our current era really is:
Antonin Scalia: A brilliant legal mind who defied civil rights at nearly every turn
PB,
Too bad they don’t actually know what a civil right is. Too bad that the man who would preserve the only institution available for the protection of your civil rights is the one they are complaining about.
The Post like the Times is incredibly overrated.
Regards,
Jim
A scoundrels’ chorus!
I shared this with my dad (a retired lawyer, writer of many “gems” of his own over the years, fellow fan of Scalia and the first person I called when I heard the news). His reply:
A wonderful memory for her to share. Thank you for sending. His letter had to have produced an anxiety filled night for one Laurel J. Sweet :)
Further confirmation that we chose a good neighborhood. Our half-staff flag is one of 4 between here and church.
[My folks moved to KC to be near the grandkids a few years ago. Four is pretty impressive number, considering the fact that their church is walking distance from their house.]
I made the gesture to my wife, who’s half Sicilian. She knew exactly what it meant.
If I had to pick my favorite justice, it would be Clarence Thomas. Scalia was a close second.
I feel compelled to offer my favorite Scalia quote from the Obergefell v. Hodges dissent, as it was not included in the recent excerpts of his classic Supreme Court opinions in Wall Street Journal’s online edition today.
Yes, Claire, he actually did write this*.
*SCOTUS No. 14-556, Scalia, J. dissent 6/26/15, joined by Justice Thomas (citations removed).
I’ve heard him say, in an interview (perhaps with Peter?) that there’s something very isolated about the work of a Supreme Court Justice and that it takes a particular and eccentric temperament to enjoy sitting alone all day and asking, “What is the correct answer, legally?” Yet I find nothing about his mind eccentric. I get everything he writes and understand the method: “Does this mean something in our legal tradition? If not, it’s vapid. Was this the common-sense interpretation of the Constitution or law in question when it was written? If not, it’s no good. And if it’s no good, go fix the Constitution or the law — it’s not my job to do that. Come back to me when you’ve fixed it.”
It’s so simple, and to me, so intellectually clean. Why make it more complicated?
I think there can be both left- and right-wing forms of originalism, but no species of non-originalism makes much sense to me.
Miss Berlinski, I think you’re not looking far enough in either direction–that is, either to how people live their lives or to how thinking about the meaning of the Constitution is done.
So far as people who have lives to live are concerned, there is all of insanity & not little of insult in sitting around wondering what people thought more than 200 years ago when it comes to deciding, for example, whether a man should be killed by the political association. I apologize for saying so, but you do not seem at all aware of the existential meaning of the dead hand of the past putting a man to death & the bureaucrats of life working out the procedure!
I apologize, too, for my terrible example. I am advised that your countrymen no longer are manly enough to execute criminals, or have raised themselves into such Christian sainthood that they forgive promiscuously. For all that, this is a problem for the Constitution that comes up now & then, & when it does, the conflict between the past & life as your countrymen know it is, as I said, existential.
But let us leave American life behind & move into the rarefied atmospheres of reflection. You are an historian & I am a man of political theory. You tell me about what people meant certain laws to say in 1787, but I cannot escape holding up the past to the judgment of eternity: Does the Constitution make sense? There is no intellectually cleanliness there-
If it does not, there are mechanisms within it to change the Constitution. These mechanisms make it is hard to argue that the Constitution is internally inconsistent. It doesn’t claim to be a perfect document, it claims to be one that requires quite some effort to change.
How easily one changes something has nothing to do with how one comes to understand it.
It is not only possible, it is likely that people today would really scratch their heads at trying to understand your constitution at anything like the level it requires understanding, & we’re not talking Plato or Shakespeare here. You could tell people what it means & they might believe you, but that’s hardly the same thing.
&, too, how many of your Justices believe–except Justice Thomas–in the natural rights teaching of the Declaration, without which the Constitution does not really make sense? I think if you think about such matters, you will see the great dangers that thinking opens up. It is not like settling matters by a majority opinion, as complicated as that is.
Your Supreme Court is also an oracle. It tends to be half-educated vulgarians like your current philosopher-king, Justice Kennedy, who apparently dedicated his life to making sure that awful name never ceases dishonoring your great republic. But were there no Kennedys to sour your lips & mine, the Court would still be oracular.
By design. That’s the point. It’s in a way analogous to, say, a constitutional monarchy.
How do you mean?
It’s designed to play something of the same role. To confer legitimacy by means of an unelected elite. It’s not passed through blood, but certainly you don’t get there by winning elections.
Oh, yeah, but they work on something more urgent than legitimacy. The Court is meant to fight the other powers in certain situations. Not when it would be dangerous to the future of the republic, whatever conservative men of principles believe about the New Deal court…
If anything, the court wields too much power it is not authorized to wield. It’s strange that a people so restless & uneducated to obey the educated as yours have ended up so obedient to the court; that the elected branches are as supine when it comes to defining constitutional conflicts & being their own interpreters to the Constitution.
At that, all three branches include aristocratic elements at their core. It’s funny how they’ve been democratized, narrowing their scope while massively increasing the powers they wield. It’s sort of like the influential classes in your country: The weirdest thing about them is not that they have no class–it’s that they’re so middle class…
Titus,
I recommend you sit down and read the constitution straight through. It is quite short. You’ll probably finish it in under 2 hours. What you should be looking for is that the entire purpose of the document is to limit the tyrannical power of government. This is accomplished by separation of powers with checks & balances and finally with explicit human rights.
It’s not perfect but it is an amazingly good job. You should recognize that, unfortunately, free-form poetic concern has resulted in the very tyranny you would condemn. In the last 100 years repeatedly, “modernity knows best” has resulted in crimes against humanity that make the religious wars of the middle ages seem tame in comparison.
The American Constitution is a great resource for those who would try to stop the tyrant. Justice Scalia’s method is limiting only if you are intellectually lazy and do not wish to make the effort to use the resources against tyranny that our Republic has already provided us. You need not be a literalist. You must work a little harder to find the resonant passage that you feel will give your point of view meaning.
We have all too often seen the revaluation of all values resulting in no values at all or just madness.
Regards,
Jim
Mr. Gawron, I assure you I have read the book. Also, in regard to the other disagreement, the Torah. I take it, you do not believe someone who reads these books could disagree with you? Or that such a man could not put forward the opinions & questions I put forward? I do not know why you think rereading the texts could solve the disagreements… Can I at least assure you I have an undergrad & grad education in pol.sci that covered the things said about American politics? I do not seek to blame my views on the schools. You may imagine, I had contrarian views back when, as well… If you like, I can tell you whose views seem to me to worth listening to most, among recent scholars, as examples, if not authorities, George Anastaplo & Walter Berns.
I share your worries about transvalutation.
That said, I think you undersell your Constitution. It’s true that your Founders mostly argued in the ugliest terms–appealing in people only to self-interest & treating human beings with a kind of rhetoric ruthlessness. Like the Federalist says, had all Athenians been Socrates, the Athenian mob would still have been what it was.
But then your Founders created a new kind of king–no republic before had such a being, a chief executive officer–when there were republican kings, there were two, so as not to be what Hamilton wanted your president to be–energy, secrecy, dispatch, unity…
I don’t follow this at all. What does it matter that the current law of the land was written 2 centuries ago? It is particularly puzzling, since in your next comment you lament justices’ ignorance of the “natural rights teaching of the Declaration, without which the Constitution does not really make sense”. If Natural Law sanctioned capital punishment in 1787, it must surely sanction it now, human nature having changed not a bit. Even Pope John Paul II, in his that-was-then-this-is-now appeal for an end to capital punishment, did not deny that.
(We no longer hang pickpockets, but reserve execution for the most severe assaults on our fellow citizens. Nonetheless, JPII, like most mush-minded, anti-social demagogues, makes his call to abolish hanging as though our legal sanctions had not changed, even though such an appeal would be pointless were we not already on the brink of doing so.)
Natural rights & natural law are very different things. At the very least, natural rights are surrendered upon entering into the civil or political state, whereupon they are replaced by political rights; not so with natural law as a justification for obedience & disobedience. Natural rights are based on the opinion that there is no fate worse than death; obviously, this is not the case with natural law. Further, natural rights are a modern teaching–the teaching of Hobbes: The first law of nature is, survive, & all others are derived from it. Therefore rights are prior to duties & always more important.
As for my argument,it is that intellectuals are caught in a trap–they are neither where the people are; nor are they where the law is.
I suppose you would concede that most Americans have neither an interest in nor an understanding of how the Constitution works, much less of the education of the men who made it. You might even agree that the electorate that approved the Constitution was in the decisive sense better prepared than the electorate is or could be now…
Finally, I do not relish the way you talk about John Paul II. I am uncertain as to what you feel provoked you, but I suggest you should be more considerate.
I must demur. Anthony Kennedy is sui generis. The rest of the oracular coven are not “half-educated vulgarians” but rather conscienceless partisans or partisan hacks. Kennedy excels at Progressive, high-minded, apodictic bloviations, which is why he was the natural choice to write Obergefell. Scalia pricked those bubbles, but they sail on undisturbed, since Progressives acknowledge no law, not even the law of gravity.
Let me remind you of the previous oracle, Lady Day…