In Memoriam: Thoughts on Justice Scalia


Jared I. Mayer,  Johns Hopkins University

Constitutional law, despite being the study of the most fundamental legal text in this Nation’s history, may be surprisingly uninteresting, or so it seems to many; what is far more interesting, however, is constitutional politics, the study of how the Court’s decisions and role effects the maneuvering of the political branches.[*] After all, it is the battleground on which political skirmishes are fought and resolved. Opinions are consequently the treaties of these battles, declaring which side of the political fulcrum won. And to this day, the ghosts of opinions –treaties – past haunt American politics. Depending on whether one is a Republican or a Democrat, Roe v. Wade and Citizens United v. FEC will respectively serve as a great failure of their constitutional politics.

In this pseudo-legal battleground, short-term political victory is, of course, essential for long-term political victory; precedent and stare decisis work push the Court, and even more assertively the political branches, to do precisely that: let the decision stand. But as the war wages on – and it will wage on for at least the near future, if not longer – it becomes easy to lose sight of the battleground itself. The Supreme Court becomes tarnished; its members become nothing more than means to achieve political ends.

What’s more, the Supreme Court itself begins to revel in its role as host of these pseudo-legal political contests, which bring the Court to the fore of the American political realm. But unlike their colleagues across the street in Congress, or a few blocks nearby in the White House, members of the Supreme Court can resolve these political contests with impunity. There is little incentive, then, to prevent political issues from arriving at the Court’s doorstep when the justices can issue their opinions – perhaps with an authoritative majority or plurality opinion – on those issues. It should come as no surprise, for example, that Justice Potter Stewart, in Jacobellis v. Ohio, re-invited litigants to come before the Supreme Court to resolve what precisely constitutes pornography, famously quipping, “I know it when I see it.”

Standing against the tide of constitutional politics was Justice Scalia. Politics, of course, was and is the communal attempt to mandate what is normatively desirable. While, to be sure, the constitution aims to achieve that goal – “to create a more perfect union,” in its own words – Justice Scalia always argued that law operates differently. Its content is affixed to the paper (or parchment), changeable solely through the channels provided for in the text.[†] While the exegetical work may be difficult, and indeed may generate a great deal of heated debate, it would be, in its essence, legal work, insulated from and immune to popular opinion on the results of the cases.

For Justice Scalia, ensuring law came before politics was not merely a byproduct, but a key component of his originalist method of interpreting the Constitution. Whereas the Founders wrote the text and whereas the text was fixed as law, it could only be changed through the amendment processes set forth in the document itself. The vast requirements for amendments, of course, devolved into the attempt by many on the Court to contemporize the text of the Constitution, imbuing it with definitions, meanings, and values that were notably modern and, more relevantly, untethered to the language, both in semantics and denotation, used by the Founders. It was the mechanism of language, not the particular provisions specified in the Constitution (though to be sure, Justice Scalia had reverence for their brilliance as well) that animated his approach to the Constitution qua fundamental law.

While his originalist jurisprudence was shared by at least one of his colleagues, Justice Scalia always approached it in his one-of-a-kind, audacious way.[‡] Always rambunctious both on and off of the Court, Justice Scalia invigorated the Court’s oral arguments process, making it the rough-and-tumble process for which it is now known. Listening to oral arguments from the 1986 term, in fact, is quite amusing. Chief Justice Rehnquist, like the others before him, introduced the case and the attorneys present. The other justices were accustomed to sit through the arguments with few, if any, questions. From the start and with little regard to his colleagues’ relative sheepishness, Justice Scalia presented difficult questions and complex hypotheticals to the attorneys in rapid succession. It was, in some sense, his signature approach to the process; so much so, that if he didn’t present questions immediately after the attorney’s scripted opener – “Mr. Chief Justice and may it please the Court” – there would be due reason to believe that something had gone awry.

The thoughts Justice Scalia spared the attorneys were often, if not always, saved for his fellow colleagues in writing. Many sources, including news outlets, former clerks, legal scholars, and others, have made his unique phrases like “jiggery pokery” and “sheer applesauce” renowned. Yet it was not only the distinctive expressions that made his opinions genuinely enjoyable to read; it was the sheer breadth of topics from which he drew inspiration. Alongside issues relating to equitable tolling, one could find a number from a Broadway musical or, more according to his proclivities, an aria from an opera. Next to the most pressing constitutional issue could be a reference to a work of literature, perhaps well-known but nevertheless unexpectedly applied. The opinions themselves contained substance and vision while maintaining grace and beauty.

From Justice Scalia’s perspective, all of these idiosyncratic practices – his originalism, combativeness, and wit, et al – were just his way of fulfilling what he saw to be his day job: being a justice of the Supreme Court. This is leaving aside whatever other roles he played with respect to his family, friends, and faith. But it is also casting off another role that, unfortunately, the late Justice never fully acknowledged: a pedagogical one. I am not referring to Justice Scalia’s time teaching at the laws schools of the University of Virginia and the University of Chicago, nor am I speaking of his time teaching in Europe when on summer vacation from the Court. I am rather acknowledging his educational effect on his readers.

To be sure, the late Justice recognized this role of his to some degree. Indeed, his most recent book, Reading Law: The Interpretation of Legal Texts, was written precisely for the purpose of educating judges, lawyers, and lawmakers how to read and, more crucially, how to write good, intelligible law. His audience for both his books and opinions was far broader than those who were invested full-time in the law. It included laymen of all stripes, graduate students from all manner of different disciplines, and undergraduates like myself. But throughout his judicial career, he never fully appreciated his role as justice qua educator and guardian of constitutional majesty.[§]

The late, infamous professor of law John Hart Ely made notice of this phenomenon in his book, Democracy and Distrust. While discussing the problem of judicial legitimacy that is compromised in the face of democratic backlash, Ely declares, “With us the symbol of nationhood, of continuity, of unity and common purpose, is, of course, the Constitution…and so it has in large part been left to the Supreme Court to concretize the symbol of the Constitution.”[**] Later in the book, Professor Ely critiques the late Justice’s textualist approach to the law. Nevertheless, Justice Scalia fulfilled Professor Ely’s words, whether he intended to do so or not. It was, in fact, hard not to fulfill the role of “concretizing” the symbol of the Constitution. His writing was packed with such rhetorical vigor and an abundance of argumentative force that the majesty of the law naturally shone through. It continues to amaze me how in an effort to make the Constitution merely the source of American fundamental law – perhaps the most uninspiring and mechanical visions for the Constitution – Justice Scalia made it so much more: the dignified anchor of our Republic that we can all revere.

And so, upon reflection, there is much to be thankful for regarding the late Justice Scalia. He provided substance to the corpus of originalist thought. In doing so, he pressed the law to transcend, and thus be free from, the realm of politics. And naturally, he did so with his usual charm, wit, and brilliance. But I must be thankful to him mostly for being a tremendous educator, whose guidance and tutelage from afar provided me with great confidence in the law and inspiration to carve a path studying it for years to come. There has never been, and there will never be, a Justice, intellectual, and educator quite like him. For that, and a great deal more, I am deeply indebted.

Rest easy, your Honor.


[*] To clarify, I am not one of these people.

[†] The process of interpreting text may be best done by consulting external documents that are relevant to understanding what the text meant at the time of adoption, such as a dictionary or other informative literature.

[‡] I refer here to Justice Thomas, though some have argued that Justice Alito is himself asymptotic to the originalist camp. I have my own thoughts on this matter, which shall be reserved for another time.

[§] Most likely, this is because of his disdain for philosophy; to say that the Constitution yielded some sense of majesty or grandeur was to imbue it with a metaphysical character, something the late Justice would almost certainly eschew. But this is a topic for another time.

[**] Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, 1980. At 31.