FJA Honors the Life of Justice Antonin Scalia

Justice Antonin Scalia (1936-2016)

The Federal Judges Association mourns the loss of United States Supreme Court Justice Antonin Scalia and extends its sympathy to Justice Scalia's family and colleagues. We also wish to recognize his extraordinary public service and contributions to the United States justice system. 

 

  

A Tribute to Antonin Scalia
by Judge David Sentelle



Antonin Gregory Scalia, Associate Justice of the Supreme Court of the United States, passed away on February 13, 2016, after a truly remarkable career as a lawyer, judge, and public servant. He is survived by his wife Maureen, their nine children, and thirty-six grandchildren.

Justice Scalia was born on March 11, 1936, in Trenton, New Jersey. He finished first in his class at both Xavier High School in New York City and Georgetown University, and graduated magna cum laude from Harvard Law School. After six years in private practice, he became a Professor of Law at the University of Virginia, and would later hold professorships at the University of Chicago, Georgetown University, and Stanford University. 

In 1971, Justice Scalia became general counsel of the White House Office of Telecommunications Policy, embarking on what would become a long career in public service. From there, he went on to serve as Chairman of the Administrative Conference of the United States, as Assistant Attorney General for the Office of Legal Counsel, and as a judge on the United States Court of Appeals for the District of Columbia Circuit. Justice Scalia took his seat on the Supreme Court on September 26, 1986, after having been nominated by President Reagan and unanimously confirmed by the Senate. When he died, Justice Scalia was the longest-serving active member of the Court.

Both as an academic and a justice, he led the re-emergence of the textualist/originalist school of constitutional thought. He was the leader and mentor of a generation of judges from a few years to a few decades younger than himself. We found in him an approach and a love for the law which we did our best to emulate.

He was my friend. He was a role model. He was one of the great jurists and great persons of his time. We will not soon see his like again.

Tributes from Former Clerks

 

Judge Jeffrey Sutton:

Judge Sutton, United States Court of Appeals for the Sixth Circuit, clerked for Justice Scalia from 1991-1992.

I had the good fortune of clerking for Justice Scalia in October Term 1991. Eleven years later, I became a judge—thanks in large measure to that transformative year.

Justice Scalia left an imprint on everyone who worked with him. It was hard not to be affected by the Justice’s passion for the law, which manifested itself most conspicuously in the “minor” cases. The Justice relished finding the right answer to all cases, big and small. Nothing was too technical, too removed from page one of the newspapers, for the Justice to take pleasure in solving the riddle of the case. He loved the chase of pursuing, arguing about, and eventually finding, the correct answer—then rigorously explaining it. Indeed, he may well have preferred the technical cases—where judges could act like lawyers and had no reason to worry about the klieg lights that sometimes shine on our work. With a not-too-subtle touch of irony, he had an amusing sign in his office that said: “Good enough for goverment [sic] work.” Nothing could have been further from the truth when it came to his work product in all cases.

During the clerkship year, I tried to figure out the secret to his writing—how he could invariably go back to the well to pull out a nifty turn of phrase here or develop an apt analogy there. He was of course highly educated, well-read, intelligent—and all that. But so are a lot of judges. The closest I ever came to figuring it out was when he gave a dramatic reading to us, his law clerks, of an opinion he had just written. My first reaction to the performance was a combination of amusement and bemusement. Who does this kind of thing? My second reaction was to notice what joy the sound, rhythm and forcefulness of the language gave him. Justice Scalia wrote well because he loved having written well—and that’s what drove him to undertake the hard work (and there was plenty of that) to write so vividly and elegantly.                       

While he could have a sharp pen from time to time, he was a jovial—and forgiving—boss. His clerks worked hard not because of anything he demanded but because they all wanted so badly to do something useful for him—the biggest challenge of the job. In one of the opinions we worked on together, a dissent, I had the temerity to suggest that he should leave in a line I had come up with. Sophisticated clerk that I thought I was, I wanted him to compare the Court’s opinion to the work of the Know-Nothing Party. When I asked him why he had removed the line, he smiled. “The first reason,” he said, “is you spelled it ‘no-nothingism.’” I could not bring myself to ask for the second reason. Know nothing indeed.

Having apparently forgotten about that incident, Justice Scalia kindly traveled to Columbus to administer the oath of office to me. At the luncheon before the ceremony, he charmed everyone, first by needling me, then by poking fun at himself. At one point, after acknowledging he was an only child, he said, “There is a reason why I am the way I am.”

At the ceremony, he offered an insight into why he was the way he was as a judge. He devoted his remarks to the words of the oath and the history behind them: that judges, among other commands, must commit to “administer justice without respect to persons” and perform their duties “impartially.”

What makes this duty challenging, he appreciated, is not the near-term task of dispensing equal justice to the people in front of you. It’s standing by that rule of decision down the road, particularly when it’s painful. It’s one thing to say that justice is blind; it’s quite another to prove it by treating seen and unseen cases alike.

One of the things I admire most about Justice Scalia is that he made it clear how he should be judged. By setting forth his views about the best way to interpret statutes and the Constitution impartially, he announced a scorecard for assessing his own work. What other judge has so clearly explained how the fairness of his own decisions should be measured?    

I marveled at how often the Justice spoke and wrote about these views beyond the Court. One reason of course was that he was ever the teacher—wanting to advocate for what he perceived to be the soundest methods of interpretation. In that sense, he never left teaching; his classroom just got bigger.

Justice Scalia, as any of his clerks could attest, was not good at faking it. If he was happy, as he was most of the time, you knew it—with his cheerful laugh leaving no doubt. If he was not, he could not hide it—whether it was something important (a decision of the Court) or something innocuous (a traffic jam). I sometimes wondered why he couldn’t cling to the former and hide the latter. But the whole package is what made Justice Scalia the unique and authentic individual—and remarkable jurist—he was.      

Which brings me to one last story. Much has been said about the friendship between Justice Scalia and Justice Ginsburg. And rightly so. A few years ago, I saw it firsthand. I had just finished a visit with the Justice when he said he was going to Justice Ginsburg’s chambers to bring her two dozen roses for her birthday. “Wow,” I said, “I am not sure I have given my wife that many roses—in total—over 25 years of marriage.” With a smirk, he said, “You might think about trying it.” Unwilling to let him have the last word, I joked, “What good has it done you?” “When was the last time,” I added impertinently, “that Justice Ginsburg voted with you in a major case?” He smiled and said, “Some things are more important than votes.” So true.

Thanks to Justice Scalia, I have a career I love, one about which I once knew nothing and one that has allowed me to do something meaningful with this one life we have.

 

 

Judge Patrick Schiltz:

Judge Schiltz, U.S. District Court Judge for the District of Minnesota, clerked for Justice Scalia from 1985-1987.

I had the privilege of clerking for Justice Scalia for two years—his last year on the D.C. Circuit and his first year on the Supreme Court. In between the two clerkships, I helped to prepare Justice Scalia for his confirmation hearings, something that, in the pre-Bork era, was still pretty much a one-person job.

One of my favorite memories of my time with Justice Scalia is going running with him on the Washington Mall at the end of the day. If he was feeling energetic, we would run from Capitol Hill to the Lincoln Memorial and back; if he was feeling less energetic, we would turn around at a nearer landmark—the Washington Monument, if it was especially hot and humid, or if he had eaten an especially big or late lunch. (Needless to say, I always assured him that I felt exactly as energetic as he did.) It was a different time; only once did someone seem to recognize the Justice.

During our runs—and during the countless lunches and dinners that we shared over the next 30 years—we sometimes talked about the law, but mostly we talked about other things. We talked about our families, and about work, and about current events, and about our shared Catholic faith. In the last few years, Justice Scalia asked a lot of questions about my work as a federal trial judge—frequently asking about the impact of recent Supreme Court decisions. When I saw him in October, we talked about the work that Johnson v. United States was creating for us lower-court judges, as well as the controversy over mandatory-minimum sentences.

Reflecting on our conversations, I realize that one of the things that has been missing from many of the recent tributes to Justice Scalia is an appreciation of what a good judge he was. He exemplified many of the virtues to which all of us federal judges aspire, including fairness, dedication, honesty, and perspective.

Justice Scalia was absolutely fair. When he worked on a case, his sole focus was the legal issues. He did not care who the plaintiff was or who the defendant was. He never once mentioned any trait of any party—such as the party’s sex, race, ethnicity, age, religion, wealth, or sexual preference—unless that trait was relevant to one of the legal issues that he needed to decide.

Justice Scalia was also passionately committed to (as he liked to say) “getting it right.” He worked very hard. I recall one Friday night, in the first month or two of my clerkship. It was late, he was tired, and he was trying to get home to have dinner with his family. On his way out the door, he asked what I thought of a draft opinion that he had edited (rewritten, really) and given back to me an hour earlier. I said that I liked his changes, except that I did not think he had fairly described one of the appellant’s arguments, and thus the draft failed to respond to the argument that the appellant had actually made. He stopped, paused, sighed, put down his briefcase and suit coat, took the draft out of my hand, and headed back into his office. He called home, told his wife that he would miss dinner, and turned on his computer. Darkness fell as he worked to fix the problem.

Justice Scalia depended on his law clerks to help him “get it right.” We did not write bench memos for him. He did not see the point of bench memos, given that he read every word of every brief himself. Instead, before oral argument on a case, Justice Scalia would talk to the law clerk who was assigned the case, usually to see if the law clerk’s initial impressions were similar to the Justice’s. Before conference, all four clerks would gather in the Justice’s chambers, and the five of us would talk about each case on which the conference would be voting. The clerk assigned to a case would introduce it, and a spirited discussion would usually ensue. Sometimes that discussion would persuade the Justice to change his intended vote.

Justice Scalia also depended on his colleagues and the lawyers to help him “get it right.” He relished debating the merits of a case. He neither gave nor sought any quarter, but an argument was always about ideas, not people. When he wrote a majority opinion, he tried to respond to the main points made by the dissenting justices—and, if he could not come up with a satisfactory response, he changed his view. He expected the same of his colleagues. He was human; sometimes he got angry, and sometimes he used harsh language. But many of his most sharply worded dissents reflected frustration—not frustration at being outvoted, but frustration at the fact that the majority did not even try to respond to any of the points that he had made. Justice Scalia deeply believed that judging should be an exercise of reason, not of will.

Justice Scalia was the most principled person I ever met. His views were not popular among most members of the media, the legal academy, and the legal profession. He was subject to constant criticism, some of which was vicious and unfair. But Justice Scalia always did what he thought was right. I never saw a trace of concern about being popular.

Justice Scalia was utterly honest; he was the rare public figure who did not say something unless he meant it. And he was without pretension. I got a taste of this in the fall of 1983, when I traveled to Washington to interview for clerkships at the D.C. Circuit. Justice Scalia’s interview was the first of the day. At the end of our interview, Justice Scalia said to me: “Tell me what I should do. I really want you to clerk for me. But I’m afraid that if I make you an offer, you’ll think I’m desperate, and then you won’t want to clerk for me. So should I make you an offer or not?” Not many federal judges would say such a thing to a clerkship applicant.

Finally, Justice Scalia was able to keep his work—as important as it was—in perspective. His faith and his family always came first. He loved to spend time with friends. He did not care about your politics or your religion (which, for many Washingtonians, are the same thing); if he liked you, he liked you, and he would do anything for you. He loved to travel. He loved to give speeches and to talk to law students. He loved to eat good food and drink good wine and smoke good cigars and read good books and listen to good music (if you consider opera to be good music). And he loved to laugh. He especially loved to laugh.

He was one of a kind.

 

 

Tributes from Current and Retired Supreme Court Justices

 

Chief Judge John G. Roberts, Jr.:

"On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice Antonin Scalia has passed away. He was an extraordinary individual and jurist, admired and treasured by his colleagues. His passing is a great loss to the Court and the country he so loyally served. We extend our deepest condolences to his wife Maureen and his family."

Judge Anthony Kennedy:

"In years to come any history of the Supreme Court will, and must, recount the wisdom, scholarship, and technical brilliance that Justice Scalia brought to the Court. His insistence on demanding standards shaped the work of the Court in its private discussions, its oral arguments, and its written opinions.

"Yet these historic achievements are all the more impressive and compelling because the foundations of Justice Scalia’s jurisprudence, the driving force in all his work, and his powerful personality were shaped by an unyielding commitment to the Constitution of the United States and to the highest ethical and moral standards.

"In the fullness of time Justice Scalia’s beautiful family will be sustained by the force and dynamism of his intellect and personality, attributes that were so decent and so powerful; but now they mourn. We give them assurances of our deepest sympathy and our lasting friendship."

Justice Clarence Thomas:

"Justice Scalia was a good man; a wonderful husband who loved his wife and his family; a man of strong faith; a towering intellect; a legal giant; and a dear, dear friend. In every case, he gave it his all to get the broad principles and the small details right. Virginia and I are deeply saddened by his sudden and untimely death. Our prayers and love go out to Maureen and the Scalia family. It is hard to imagine the Court without my friend. I will miss him beyond all measure."

Justice Ruth Bader Ginsburg:

"Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: 'We are different, we are one,' different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the 'applesauce' and 'argle bargle'—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his 'energetic fervor,' 'astringent intellect,' 'peppery prose,' 'acumen,' and 'affability,' all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

"Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend."

Justice Stephen G. Breyer:

"Nino Scalia was a legal titan. He used his great energy, fine mind, and stylistic genius to further the rule of law as he saw it. He was man of integrity and wit. His interests were wide ranging as was his knowledge about law, this Nation and its Constitution. He loved his family. He also loved ideas, music, and the out of doors. He shared with us, his colleagues, his enthusiasms, his humor, his mental agility, his seriousness of purpose.  We benefitted greatly. His contribution to the law was a major one. Our hearts go out to Maureen and his family. We have lost a fine colleague and a very good friend. We shall miss him hugely."

Justice Samuel Alito:

"Martha-Ann and I are deeply saddened by the terrible news. Nino was a remarkable person, and I feel very honored to have known him and to have had him as a colleague.  He was a towering figure who will be remembered as one of the most important figures in the history of the Supreme Court and a scholar who deeply influenced our legal culture. His intellect, learning, wit, and memorable writing will be sorely missed, and Martha-Ann and I will deeply miss him as a friend. We will keep Nino, Maureen, and their family in our prayers."

Justice Sonya Sotomayor:

"My colleague Nino Scalia was devoted to his family, friends, our Court, and our country. He left an indelible mark on our history. I will miss him and the dimming of his special light is a great loss for me. My thoughts are with Maureen, his children, and his grandchildren."

Justice Elena Kagan:

"Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law. I admired Nino for his brilliance and erudition, his dedication and energy, and his peerless writing. And I treasured Nino’s friendship: I will always remember, and greatly miss, his warmth, charm, and generosity. Maureen and the whole Scalia family are in my thoughts and prayers."

Justice Sandra Day O'Connor:

"I am deeply saddened to learn of the passing of my dear friend and colleague, Justice Antonin Scalia. Nino was a tireless public servant who left an indelible mark on the Court and on our jurisprudence. His gifts of wisdom, wit, and wordsmithing were unparalleled, and he will be sorely missed."

Justice John Paul Stevens:

"Nino Scalia was a good friend, a brilliant man with an incomparable sense of humor, and as articulate as any Justice who ever served on the Court. He has had a major impact on the development of the law, and earned the respect of all his colleagues. We will all miss him."

Justice David H. Souter:

"Nino was a good friend, and I hate to think that we'll never sit down together again to argue and tell a few stories and have some fun. I will always miss him."

 

This website will be available to add tributes from those FJA members who wish to share them. 

 

 

Tributes from FJA Members

 

 

Judges of the Ninth Circuit:

"The federal judges of the nine Western States join with jurists throughout the country in marking, with sadness, the sudden passing of an extraordinary figure in American judicial history.  Supreme Court Associate Justice Antonin Scalia was a brilliant and consequential judge, a towering influence on our jurisprudence and the Rule of Law.  Over the course of thirty years of constitutional interpretation, whether in majority or in dissent, he reminded those of us on the lower federal courts to be true to the text --- be it the words of the Constitution, statute or any writing of legal import.  And on a personal level, he took the time and made the effort to share his wit and good humor with us at the Ninth Circuit Judicial Conference and at many other gatherings within the circuit farthest from Washington D.C.  The federal judiciary has lost a giant of our time, a dedicated professional and a role model to many of us. Our hearts go out to Maureen and his wonderful family."

 

 

Judge Thomas J. McAvoy, Northern District of New York:

"He was a great man with a great mind and an even greater sense of justice. He will be missed here in NYND just as in all the rest of our country."

 

 

 

Judge Elizabeth Kovachevich, Middle District of Florida, shares the following article from the Tampa Bay Chapter of the Federal Bar Association: 

Local Lawyers and Judges Recall Justice Scalia's Visits

by Larry Dougherty

 

Meredith Wester was seasick. She had been looking forward to accompanying her fellow law students on a fishing trip to host visiting U.S. Supreme Court Associate Justice Antonin Scalia. But now that they were out on the Gulf of Mexico and the waves were rolling, she couldn’t keep anything down. She felt miserable.

  

Just then, there was a voice at her elbow. It was Justice Scalia himself, offering Wester ginger ale and some comforting chat.

  

“We talked about my kids and his kids,” Wester recalled. “He was very down to earth, very easy to talk to. He didn’t have to go get me that ginger ale. I was surprised when he said ‘I brought you something.’ He didn’t have to do that.”

  

Wester was one of numerous local attorneys and judges who reflected recently on their encounters in the Tampa Bay area with Justice Scalia, in the wake of the justice’s death in February 2016. They recalled a down-to-earth and friendly person who loved outdoor sports—an intriguing insight into the private persona of the brilliant jurist and fiery debater of cultural values seen in the public eye.

  

The Stetson law review hosted Justice Scalia on a deep-sea fishing trip, some tennis, and a talk in 1989 or 1990, Wester recalled. Scalia’s love of fishing and hunting was well-known, so people made efforts to include those activities in invitations. (Justice Scalia again visited Stetson in 2007.)

  

Foley & Lardner litigator Chris Griffin recalls a separate Young Lawyers Division fishing trip out of the Panhandle in honor of Justice Scalia. (Disclosure: Justice Scalia once worked at Foley & Lardner’s main office in Milwaukee). There were a dozen lawyers on the boat. But Justice Scalia was the only one to catch a fish. “People accused us of hiring a scuba diver to put a fish on Justice Scalia’s hook,” recalled Griffin.

 

Justice Scalia was friendly and sociable, Griffin said. But still it was hard to say, “‘Justice Scalia, will you please pass me a Budweiser?’” Griffin quipped.

  

Justice Scalia made a separate trip to St. Petersburg in 1998 to speak to the annual dinner of the Tampa Bay Chapter of the Federal Bar Association. The chapter president-elect at the time, Mike Hooker, recalled that Justice Scalia was a confident speaker who was not afraid to make major last minute changes to a prepared address.

  

About 700 lawyers appeared at the Bayfront Hilton to hear Justice Scalia speak, Hooker recalled. Justice Scalia had just come from a Red Mass in St. Petersburg and expressed surprise at the size of the dinner crowd. That’s when Justice Scalia learned for the first time that he was expected to speak to a general audience, not just the lawyers who had attended the Catholic religious service that afternoon. Unperturbed, Justice Scalia retrieved some notes from his hotel room and reviewed them while the attendees ate.

 

“No more than twenty minutes later, he gave an articulate, funny, and very well-received, if little rehearsed, 40- minute speech,” Hooker recalled. Hooker turned to his wife, who was sitting next to him, and said, “I would never have been able to do that in a hundred years.”

  

U.S. District Judge Elizabeth A. Kovachevich was serving as chief judge at the time of Justice Scalia’s 1998 visit. She recalled riding in the car that picked up Justice Scalia from his hotel, and Justice Scalia not being shy about saying when he thought drivers in St. Petersburg were not obeying the rules of the road. She saw the same outspokenness from Justice Scalia on another occasion, when he was giving her a ride in Washington, D.C. “He was impatient, blaring the horn,” Judge Kovachevich recalled about that drive in D.C. “Justice Thomas told me that he rode with Justice Scalia just one time, and that was it.”

  

Judge Kovachevich said that in knowing Justice Scalia over the years, what came through clearest was his warmth and candor. “He was a down-to-earth person, a very vital person.”