"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Saturday, February 13, 2016

Rest in Peace Justice Antonin "Nino" Scalia

Somebody just called the wife and me to tell us that Justice Antonin Scalia has passed away.  We're both shocked at our nation's loss.  We are very sad.  We are remembering his great legacy and our intersections with his great mind.

The earliest memory is when my wife interviewed to clerk for Justice Scalia years ago and I remember her trepidation at the prospect of being examined by somebody of Scalia's intellect.  I was stationed at Laughlin AFB and I remember her preparing for her interview in my low rent apartment.  She had stacks and stacks of legal opinions and she was cramming them down, trying to educate herself.  She was nervous.  Justice Scalia's intellect and razor sharp mind was extremely intimidating, even to a new lawyer who had graduated number one from a top law school.  A conversation with Justice Scalia was an entirely new level of intellectual rigor.

She tells me some funny things about their conversation during her interview.  Justice Scalia asked her what she thought was the most unworkable constitutional doctrine.  She answered the establishment clause.   He said, okay, how would you change it?  She said clearer rules, based on a neutrality principle (i.e., government neutrality between religion and non-religion and among religions), knowing that Scalia disagreed with the neutrality principle but believing it to be on sound logical ground.  He then threw out all sorts of examples that are understood to be constitutional but conflict with a neutrality principle, taken to its logical conclusion.  She kept repeating that there could be an exception for this or that.  To which he finally responded "well don't you think the exceptions should inform the rule?"  She then thought "I'm probably not getting this job..."  

Justice Scalia then offered to talk about something she must know more about than the First Amendment, which was separation of powers.  After engaging in a more extensive discussion about the scope of commander-in-chief powers, which my wife was arguing were more limited, Justice Scalia asked "but what about Jefferson and the Barbary Pirates?"  To which she had no choice but to respond "I don't know about Jefferson and the Barbary Pirates" (thinking for sure she was not getting the job now...).  As she describes it, Justice Scalia's expression betrayed a sense of despair at the state of American education.  He was gracious.  She did not get the job.  But she does now know all about Jefferson and the Barbary Pirates...

That meeting turned out to be the highest quality interview prep possible, and weeks later my wife did interview with, and get to clerk for, another justice of our nation's high court.  As such, she was able to grow more familiar with Justice Scalia as she worked with his clerks over the course of a year.

Because of her, I have spent some time at our nation's highest court and I have been fortunate enough to see Justice Scalia question counsel during argument.  I specifically remember an exchange between Justice Scalia and a lawyer from the ACLU and I chatted with that lawyer right after the argument about their very lively interaction.  While I won't relay the lawyer's comments, it was apparent that Justice Scalia made the biggest impression on him during his argument.

I have also been beyond lucky to have had a friend introduce me to Justice Scalia and we had a nice conversation and talked mostly about one of his nine children who is, like myself, a military officer.  The picture above was taken with the justice just behind the person taking the photo.

Justice Scalia had a great sense of humor and despite how he is often depicted by those who would caricature him, he was polite and gracious.  I remember once watching a reenactment of Texas v. White at the Supreme Court, where Justice Scalia alone sat behind the bench to hear the "case."  The first counsel to speak was a distinguished female lawyer and Justice Scalia responded, staying in character from 1869, "What's this?  A lady lawyer?"   Everybody in the court laughed. 

Justice Scalia was a polarizing figure.  And Justice Scalia has been wrong many times, and infuriatingly so in some cases.  But he has also been incredibly right and not infrequently.  He sought not to come to any particular outcome in his legal reasoning, but to follow the law faithfully.  He sought to be true to the law as it was written and not as he wished it to be, whether he liked or agreed with the outcome that the law would demand.  That does not mean he succeeded at all times in such purity.  For the majority of Americans interested in outcomes rather than legal reasoning, that can cause us to either love or hate his rulings from the bench.  But Justice Scalia cared about being faithful to his duties as a judge, leaving outcomes to politicians who write laws for that purpose, whether good or bad laws depending on personal preference.  To him, not being faithful to the law in order to achieve an outcome was to rob the American people of their democracy.

Recently, Justice Scalia denied my extension request in my lawsuit currently before the Supreme Court, as he does for all parties in his fair manner.  I suspect he would not have voted to grant cert in my lawsuit currently before the Supreme Court.  He did not have the best track record, in my opinion, on the Fourth Amendment or limits to police powers.  Some of his rulings truly anger me.

Still, Justice Scalia was a great American.  Yes, he got it wrong as do all of the justices of our highest court.  But when he got it right, he got it incredibly right.  His dissent with Justice John Paul Stevens in Hamdi was pure American beauty as this short video below demonstrates.

And he was absolutely right about his originalist approach, at least in as much as it held that our law itself is the source that must command outcomes, rather than desired outcomes and desired "interpretation" driving what we pretend that our written law states or means.  Justice Scalia's approach was one of integrity and it is absolutely crucial in a system of law.  The text must be respected and law still carries the force of law even when wearing a robe.  Or as one of his former "clerkorati" wrote about her old boss:

He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.

Justice Scalia was a brilliant mind and a great American.  Our nation is weaker today than it was before his passing.  Americans, regardless of politics, should join me in my sadness at Justice Scalia's departure.

RIP Nino.  My heart goes out to your family and our nation.

No comments:

Post a Comment