Justice Scalia and What His Legacy Means to Me
A former Supreme Court law clerk remembers Justice Scalia
Justice Antonin Scalia was perhaps one of the most polarizing figures in the American judiciary. Revered by some and antagonizing to others, perhaps the one sentiment shared by all familiar with his work was that he was undeniably brilliant. If he was against you, you bristled at his cutting tone, but if he was with you, you reveled in his sarcastic wit.
A self-described originalist, Justice Scalia had an unyielding judicial philosophy that often resulted in politically conservative holdings. Yet, there were other areas—like the criminal defendant’s Sixth Amendment right to confront the witnesses against him—where the same ardency would lead him to unexpected conclusions at the other end of the political spectrum. Just last year, he and Justice Samuel Alito squared off in the case of Ohio v. Clark, where Justice Scalia wrote separately, joined by his friend off the bench, Justice Ruth Bader Ginsburg, “to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington.” While Justice Scalia’s strong words were often lobbied toward his more liberal colleagues, he would not hesitate to deliver the same treatment to those with whom he more often found himself in agreement.
I was fortunate when serving as a law clerk to Justice John Paul Stevens to have lunch with Justice Scalia and my three other co-clerks at one his favorite restaurants, the now-shuttered A.V. Ristorante Italiano. Justice Scalia was, as always, in fine form, and we engaged in a lively debate over delicious Italian cuisine. I came away from that lunch with the sentiment I had so often had in reading his opinions: while there were many issues on which I could not disagree with him more, you could not dispute the man’s conviction, nor his sheer intelligence.
Toward the end of his time on the bench, as many others have noted, Justice Scalia appeared to have lost all patience with the direction in which he deemed the Court to be heading. In his dissent in Obergefell v. Hodges, the landmark case from last term holding that the Fourteenth Amendment prohibits states from banning same-sex marriage, he called the majority’s opinion a “threat to American democracy,” accused it of “lacking even a thin veneer of law,” and proclaimed that the Court had “descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Perhaps it is fitting, then, that Justice Scalia’s replacement will be chosen in the midst of what seems like one of the most polarized moments in American politics. While many accused Justice Scalia of maintaining a brash demeanor that chipped away at the typical level of decorum present at the Court, there seems to be little decorum—if indeed there is any at all—left on the American political landscape. Just hours after the justice’s passing, the Internet lit up with speculation about how quickly and who would take his place. Inevitably, this will continue—as will the highlights of the justice’s best and worst moments—until the next juicy newsbyte takes its place.
With that as a backdrop, of everything I have seen in the last few hours, this post from a former law school classmate stands out as the highlight:
“As many of you can probably guess, I generally didn’t agree with Justice Scalia’s jurisprudence, and I was often disturbed by the tone he took with those with whom he disagreed. But in this time when it feels like recognizing the humanity of those who are different from us, who disagree with us, is seen as a sign of weakness, as a sign of being a sell out, I want to say that I truly believe that Justice Scalia was a man who was extremely smart, an unbelievable writer, and sincerely believed in his interpretations of the Constitution.”
Like her, I hope that wherever he is now, Justice Scalia is able to find a peace I fear is far, far off for the rest of us who remain in his wake. Rest in peace, Justice Scalia.
Lauren Sudeall Lucas, assistant professor of law, teaches Constitutional Law and Capital Punishment. Before joining the faculty at Georgia State Law, she served as a law clerk to Justice John Paul Stevens during the 2006-07 term, as a law clerk to Judge Stephen Reinhardt on the U.S. Court of Appeals for the Ninth Circuit, and as an attorney at the Southern Center for Human Rights in Atlanta.