While Justice Scalia would have been grateful for the many warm tributes written about him over the last year, I wonder whether he would have noted, with his wry smile, one potentially awkward feature of them. Is not what we are doing uncomfortably close to one of his favorite targets in life: after-the-fact legislative history? (1) Might he not have accused us of trying to introduce a friendly set of submissions in order to varnish this or that part of his life--to make it look like something it was not?
No risk there. If there is one point on which all can agree, it is that Justice Scalia led an unambiguous life. There is so much evidence, so much clear-eyed text if you will, about where he stood--on just about everything. Want to know what he thought about constitutional and statutory interpretation? Check out A Matter of Interpretation. (2) Want to know his views about the canons of construction? Read Reading Law, (3) Want to know his views about the interaction of faith and law? Try his many speeches on the topic. (4) And then of course there are his 870 opinions on the Court. For Pete's sake, there has even been an opera written about him and Justice Ginsburg. (5)
So there is little room for lawyerly construction or deconstruction or even an original song. But there is plenty of room for gratitude and admiration.
Start with personal gratitude. Luckily for me, few lawyers knew me before I worked for Justice Scalia. Let us just say I was not a promising candidate for arguing cases before the Supreme Court or deciding cases in the court of appeals, as (at least) one incident from my clerkship year confirms. Sophisticated law clerk that I thought I was, I wrote a draft dissent for the Justice that at one point compared the majority opinion to the Know-Nothing Party of the nineteenth century. I was crestfallen when the Justice removed the line, and I had the audacity to ask him why he had taken it out. "Well, Jeff," he said, "the first reason is that you spelled it 'No-nothingism.'" I could not bring myself to ask him for the second reason. Know nothing, indeed.
I am indebted to Justice Scalia for giving me the legal skills and inspiration to reach for what should have been unreachable jobs. But I am most grateful to him for something else--that I have enjoyed every job I have had in the legal profession. How life changing, how much fun, to come across someone with such a spirit of curiosity, such a remarkable wit, and such a fearless character. Once you had a drink at that well, there was no turning back. If anyone knew how to inspire a young person to turn law into a calling, it was Justice Scalia.
Let me turn to admiration. As the last 228 years confirm, it is a tricky business to aspire to "a government of laws, and not of men" (6) and yet permit a small group of men and women to have the final say over cases that decide the meaning of the Constitution and the rest of federal law. Augmenting that challenge is the ever-present risk that judicial interpretation will say more about the interpreter than the document being interpreted. Justice Scalia approached these dilemmas head on and devoted a career to addressing them. The longer I have been on the bench, the more I have come to admire his efforts to resolve these vexing questions.
If there is one aspect of Justice Scalia seared into my mind, it is the value he placed on ideas. The proper currency of law in his world was reasoned interpretation, not adding-up-to-five power. It followed that good ideas, not the station of the judge or the advocate who came up with them, drove his approach to the Court's work. That is not a bad thing for a lower court judge or for a legal system. It means that everyone has a chance to influence the process. And it means that a legal culture that must be hierarchical in one way need not be hierarchical in all...