Antonin Scalia, the Brilliant, Joyful Justice
I first met Antonin Scalia, the father of a childhood friend, when I was just shy of 14. I remember him as joyful and a bit intimidating then. All these years later, he remained joyful and a bit intimidating in my eyes. Maybe even more so.
As an adult, you come to understand that joyfulness is not the easiest thing to maintain. Yet over three decades, the wisecracking, poker-playing, opera-loving Supreme Court Justice Scalia was an everlasting embodiment of the joy found in debate – even when losing.
Finding himself on the losing end of a 7-2 decision about whether the American Disabilities Act required the PGA to furnish professional golfer Casey Martin a golf cart because of a congenital medical condition, Scalia unleashed his famous sarcasm:
“I am sure,” he wrote, “that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later … the judges of this august Court would someday have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer?”
Seeing that he was arguing a lost cause, Nino Scalia, as his friends called him, puckishly invoked the old spoof that the definition of golf was “a good walked spoiled.”
Over the same decades, through forceful majority opinions and sharp, stunning dissents, Justice Scalia’s place as a giant of American jurisprudence only grew. Many an advocate who appeared for the first time before the Supreme Court went into oral arguments feeling the way I did upon meeting him as a teenager. But some found that the intimidation they felt before oral arguments turned into laughing about it afterwards.
He could interject levity into arguments about the most serious of constitutional questions. In a 2013 case, when Justice Department lawyer Sarah E. Harrington characterized marriage as a question of freedom and “not a source of economic value in the sort of traditional sense,” Scalia quipped, “A lot of people marry for money.” Laughter echoed through the chamber.
Off the bench he could be even funnier. Speaking last year at the graduation ceremony for an all-girls Catholic school, he took aim at the typical commencement address clichés. “‘To thine own self be true,’” he said. “Now this can be very good or very bad advice, depending on who you think you are.”
He sense of mirth – and sense of timing – were so sure that sometimes he didn’t even need to say anything. When Seth P. Waxman, an attorney representing ABC in a censorship case, noted that a legal complaint about coverage of the opening ceremonies of the Olympics concerned “a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks,” Scalia strained his neck around the Supreme Court as if looking for the offending statues, again inducing laughter.
He was a rollicking, transformational legal figure of astonishing intellect, wisdom and wit, a man for the ages who believed in the harmony of faith and reason, a kind of American St. Thomas More who was a brilliant jurist and father of a large family.
In time I grew up and went to law school, married, and started raising a large family of my own, taking comfort in my Catholic faith and political conservatism. To me, Scalia was a source of continual inspiration. Before his arrival on the scene, progressives were successfully reshaping the country into their own image through the courts, effectively undermining democracy in the process. Scalia would have none of it. With his clear judicial philosophy (“originalism”), his outsized personality, literary skill and dramatic flair, he helped change the debate, if not outcome of the debate, in many areas.
The man in full was on display in Scalia’s 2005 address at the Woodrow Wilson International Center for Scholars: "Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people,” he said. “This is such a minority position in modern academia and in modern legal circles that on occasion I'm asked when I've given a talk like this a question from the back of the room – 'Justice Scalia, when did you first become an originalist?' – as though it is some kind of weird affliction that seizes some people – 'When did you first start eating human flesh?'"
By then, it had long been clear that Scalia believed that his “living Constitution” colleagues on the high court were the ones who should be explaining themselves. As he wrote in one 1996 dissent, "What secret knowledge, one must wonder, is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?"
Justice Scalia wasn’t perfect. His unwillingness to compromise or massage the feelings of an opponent to gain a needed vote may have cost his side – the court, after all, is a political institution. And although he once famously invoked St. Paul's maxim of being “a fool for Christ,” he did not seem to suffer fools gladly. The result could sting and may have been counter-productive for persuasion.
Although his “fool for Christ” line occasioned criticism from those who did not know the Bible, the tight paragraph it was tucked into contained a wisdom that may have been borne of Scalia’s own experience. "[H]ave the courage to have your wisdom regarded as stupidity,” he told a Knights of Columbus gathering in Baton Rouge, La. “Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world."
It’s certainly a wisdom that has spoken to so many, in St. Paul’s day and ours.
Scalia loved his Roman Catholic faith, and this love was inseparable from who he was as a great American justice. It was part – perhaps the taproot – of the joy. He was generous to the church and, with his wife Maureen, brought others to Christ. Justice Clarence Thomas talks about the beginnings of his own path back to the church when he attended the ordination of Scalia's son Paul.
It seems so appropriate that one of the last pictures of him posted on Facebook was from Ash Wednesday. There he was, smiling, ashes on his forehead.
He was also proud of his Italian heritage. If he ever had favorites, the scales might tip toward the sons (and daughters) of Italy. One night, several years ago, I attended a dinner where Justice Scalia sang “Volare!”
The sheer joy. Imagine the oral arguments, the songs and laughter – the joy – now in heaven. A comfort to family, friends and admirers of Antonin Scalia who are left, for now, in grief and sorrow.