A tribute to Justice Antonin Scalia.

Author:Thomas, Clarence
Position:Testimonial
 
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I was blessed to have had Antonin Scalia as a colleague and as a dear friend. I did not know Nino when I joined the Court in 1991, and we certainly made an unlikely pair: a northerner from a house of educators, and a southerner from a house of almost no formal education. "Friendship," however, "is born at the moment when one man says to another 'What! You too? I thought that no one but myself....'" (1) Despite our different backgrounds, Nino and I experienced that moment often. We shared our Catholic faith, love of country, and reverence for the Constitution and the rule of law. And so, over the course of nearly twenty-five years, Nino and I developed an improbable yet unbreakable bond of trust and friendship. I cannot overstate how much I treasure that bond.

It is equally difficult to overstate Justice Scalia's contributions to the law. So difficult, in fact, that finding the right words to capture his legacy seems all but impossible. Suffice it to say, he transformed the law, winning many converts (including me (2)) with his persuasive and colorful opinions. I cannot help but laugh when I imagine what would have been Nino's beaming grin had he lived to read a recent D.C. Circuit opinion, declaring the "nearly universal consensus" that he "had been right" in his lone dissent in Morrison v. Olson (3) "to view the independent counsel system as an unconstitutional departure from historical practice and a serious threat to individual liberty." (4) I am sure Nino would have treated me to a dramatic reading of the D.C. Circuit's opinion, much like those performances he would proudly deliver in chambers after completing a writing with which he was particularly pleased. There were many such dramatic readings over the years--and deservedly so. His opinions captivated even the most skeptical reader.

I will leave a full accounting of Justice Scalia's tremendous legal legacy to the many others who have said so much to honor that legacy since he passed away. I instead want to focus on one of Nino's perhaps underappreciated virtues. For all his confidence as a legal thinker, Justice Scalia was remarkably humble about his role as a judge. He knew that his duty to declare the law was hardly "a separate, free-standing role," but merely an "incidenta[1]" one, appropriate only when necessary to resolve a case or controversy. (5) And when it came to answering the controversial moral questions of the day, he put more faith in "nine people picked at random from the Kansas City telephone directory" than in "the nine Justices of this Court." (6) Nino reminded us that government officials have little incentive "to place restraints upon [their] own freedom of action." (7) And he also reminded us that the Court, in particular, "seems incapable of admitting that some matters--any matters--are none of its business." (8) But he had the humility to resist these temptations and to respect the text of our laws and our Constitution, including when they assign...

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