The real Justice Scalia.

Author:Jolls, Christine
Position:Supreme Court Justice Antonin Scalia

Ronald Dworkin wrote in his final book, Justice for Hedgehogs:

We value great art most fundamentally . . . because it embodies a performance, a rising to artistic challenge. We value human lives well lived not for the completed narrative, as if fiction would do as well, but because they too embody a performance: a rising to the challenge of having a life to lead. (1) Justice Scalia had a life to lead--and he did. For someone of his office and his level of jurisprudential influence, he was remarkably disinterested in the calculated, detached pursuit of an optimal "completed narrative." (2) Instead he led with his heart.

He was "REAL."(3)

"What is REAL?" asked the Rabbit.... "It's a thing that happens to you...." "Does it hurt?" asked the Rabbit. "Sometimes." (4) For Justice Scalia, neither people nor ideas were means for producing a desired objective or goal; rather they were always ends in themselves. Day in and day out, he actively modeled a form of regard and authenticity that became an organizing personal example for me and many of his other wildly devoted law clerks, even those who, as in my case, rued his substantive views.

Although at times Justice Scalia achieved remarkable jurisprudential success--especially in statutory interpretation (5)--on other occasions, often in constitutional law, I believe his heart confounded his preferred "completed narrative." (6) Because he was Real, there was raw, unvarnished hurt when he lost, and he routinely bled from austere constitutional principle (7) to demonstrated partiality toward policies or institutional structures the Court was invalidating. (8) (When, instead, he was with the majority on austere constitutional principle--as when he provided the fifth vote for the unconstitutionality under the First Amendment of jailing a protester for pouring kerosene on the American flag and burning it at a national political convention (9)--Justice Scalia proved able to put deep personal feelings aside; although he "hate[d] the result" in the case, (10) he joined the majority because, he said, we "have a First Amendment." (11)) Justice Scalia certainly was not always a jurisprudential adherent of "behavioral law and economics" (12)--but both in his life and in his oeuvre he was "both nicer" and at times "more spiteful than the agents postulated by neoclassical" economics. (13) That he was far more a "Human" than an "Econ" (14) was at times a source of chagrin to some of his clerks--as well as to his wife.


To continue reading