Agreeing with and respecting a jurist are two very different things. I know this because I came of age as a lawyer in the time of Justice Antonin Scalia.
A former Scalia clerk, one who himself was not always completely in step with his mentor, has a photo of the Justice at President Obama’s second inauguration on his wall. “He was up on the dais, and wearing an eight-sided hat,” the clerk told me after Scalia’s death was announced on Saturday. “And he’s got this great smile. That was the man I’ll remember. A combatant, but a happy one.”
All that I’ve read about and by Scalia, everything that I’ve heard from those who knew him, confirms that he was genuine in his convictions and faithful to his legal principles. That authenticity, his jurisprudential fidelity, made his insistence on airing his conclusions—often in unabashedly forceful or even unpalatably pointed terms—not just tolerable for those who disagreed but even admirable.
That’s why Justice Ruth Bader Ginsburg, whose unlikely friendship with Scalia inspired an opera, said of hearing Scalia speak for the first time, “I disagreed with most of what he said, but I loved the way he said it.” In her statement following his death, issued Sunday by the Supreme Court, Ginsburg wrote that Scalia’s “pungent opinions” were “so clearly stated that his words never slipped from the reader’s grasp.” She also praised their content. “We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation.”
Scalia was more consistently present from the bench than any other Justice.
There will never be another Scalia. And there’s no one remotely like Scalia on the bench now. During oral arguments, he alternately tossed out bons mots, asked carefully crafted questions, pushed counsel on their assertions, posed thoughtful hypotheticals, and engaged colleagues.
Scalia’s comic contributions during oral arguments could be self-deprecating or mocking or observational. During Puerto Rico v. Sanchez-Valle, the case that could radically alter Puerto Rico’s status and the rights of its residents, Scalia directed one joking reassurance at counsel—”take your time,” following Justice Stephen Breyer’s request for responses to five separate points—and lobbed four apparently teasing, clarifying questions at Breyer. Those arguing before the Court, listening to its proceedings, and reading oral argument transcripts will laugh less without Scalia, whose ability to coax laughter from spectators was once formally quantified by the New York Times.
Then there’s the matter of airtime for the views he championed. Of the Justices who tended to align with Scalia most regularly, only Chief Justice John Roberts spoke more than Scalia did during this past January’s oral arguments—and that’s because, as Chief Justice, Roberts is, in effect, the Court’s M.C. When I discounted procedural remarks—announcing the case and thanking counsel—I found Scalia spoke more often during January’s arguments than even Roberts. Scalia often led the charge on behalf of his cohort, and his pointed questions and distinctively dogged follow-up were uniquely effective at prompting counsel to develop and defend their arguments. It remains to be seen whether any of his confederates will be able to fill that role.
And, of course, Scalia’s absence at oral argument creates a lacuna not just in the ranks of those with whom he agreed but the Court as a whole. An examination of which Justices spoke and how often in January, counting not total questions asked of counsel—interruptions and cross-talk often force Justices to speak multiple times to finish a single question or exchange—but total number of instances of verbal engagement, suggests that Scalia was more consistently present from the bench than any other Justice.
Most Justices speak at least a handful of times per case, but engagement varies. The Chief Justice’s non-procedural interjections or contributions at oral argument ranged from seven to 31 in January cases. Justice Anthony Kennedy chimed in as few as four times in one case. Meanwhile, Justice Sonia Sotomayor spoke anywhere between nine and 43 times.
In two January cases, a Justice spoke only once: Ginsburg asked a single question in a case about a moose-hunter and a hovercraft on national park lands and Breyer offered only a statement, concluding with an express rejection of any need to reply, in a case brought by, among others, Nebraskan liquor dealers, over whether the town of Pender, Nebraska, should be considered to be located on a Native reservation. And, of course, there’s one Justice who rarely speaks from the bench at all. (That’s Justice Clarence Thomas.)
By contrast, Scalia was actively engaged each and every day he heard arguments—not just in those cases where he took special interest or could bring particular expertise to bear, but in every case. He spoke fewer than 20 times only once in January (and his low was 19), averaging 22 interjections per case.
In February of last year, Scalia said of his tenure on the Court, “I’ll get out as soon as I’m not doing the job that I’m supposed to do.” If the job of a Supreme Court Justice is to apply his highest mental faculties, to follow his legal principles and apply them faithfully to each case and controversy, and to approach the process of debate and discussion in good faith (if not in the spirit of compromise), I say that day never came.
