Judging Antonin Scalia

New York, February 24, 2016—The legacy of Antonin Scalia was debated in the days after the death of the current Supreme Court’s longest serving justice. Political partisans squabbled, but Columbia Law School faculty and students offered a more complex assessment at a Feb. 16 discussion, as a panel of five professors recalled the life, rulings, method, and personality of the outspoken judge. The discussion was moderated by constitutional law scholar Jamal Greene, vice dean and Professor of Law at Columbia Law School.

 

The professors agreed on a few points: Scalia, though known for his lively prose, wrote few significant majority opinions, and for an unabashed conservative, he enjoyed debating legal merits with liberals. He was a law-and-order judge who supported the death penalty but had sided with criminal suspects on the right to cross-examine witnesses, and he joined a majority of justices to upset sentencing guidelines that authorized judges to augment sentences based on facts juries had not determined. For a justice many labeled as an aggressive ideologue, Scalia was also remembered for his personal warmth and honesty.

 

Yet for all of his eulogized amiability, the panel concluded, Scalia enjoyed arguments, his opinions could be acerbic, and he was not a consensus builder. In the end, Scalia’s most important legacy may have been his unique example.

 

 

That example was methodological, said Thomas Merrill, the Charles Evans Hughes Professor of Law. “Probably more than any other justice in the history of the Supreme Court, he was truly interested in legal method, or what method you take to decide a case,” he said. “Most justices are relentlessly eclectic about how they decide cases, and they’ll adopt one method or another as necessary to reach the result they think is correct in a particular case. Justice Scalia was different in that he actually cared a great deal about the method that one followed in deciding cases.”

 

In constitutional law, Scalia was an originalist. He didn’t invent originalism, but in his methodical rigor and outreach—his books, speeches, and work—he made it a force that others had to reckon with, even if they disagreed with him, said Gillian Metzger, the Stanley H. Fuld Professor of Law. “Scalia not only gave a voice on the Court to the ideas of originalism but he gave them salience in our popular life and in legal practice,” she said. “He forced originalism into the mainstream and required all constitutional theorists to grapple with its ideas.

 

“These ideas have not, however, been the deciding force in very many decisions,” Metzger said. “More than that, what we’ve seen is people taking a broader lens to history. They take history much more seriously—they will talk about practice and understood public meaning at the time of the framing—but then they’ll look at what our practices were over time. This is actually a kind of working acceptance of established practice over time that embodies the idea of an evolving constitution and is not Justice Scalia’s vision.”

 

While originalism did not carry the day, said Merrill, “clearly Justice Scalia had influenced the tenor of the debate, moving it strongly in the direction of originalist arguments.” Scalia was not an unbending originalist—“at one point, he said he was ‘not nuts,’” recalled Merrill—but he had extended a similar textualist rigor to statutory interpretation. “He was adamantly opposed to referring to legislative history,” said Merrill. “You'll still see cases in which the purpose of Congress is discussed or in which the Court will dip into legislative history, but over time there is less and less of that. Today, in virtually every case, there's a central attention given to the statutory language.”

 

 

“Somewhat surprisingly, he was not effective at patching together coalitions of like-minded people in order to reach particular results in cases,” Merrill said. “He was not like Justice Brennan, for example, who said that the only rule you need is five—you have to get to five votes. Justice Scalia wasn't good at counting to five.”

 

This failing was likely an outgrowth, in part, of his passion and combative prose style, agreed Metzger and Merrill, who recalled stories of Scalia offending some colleagues with the “flamboyance” of his opinions, perhaps another reason why he was not often asked to write for the majority. When the Court legalized gay marriage last year, Scalia wrote a stinging dissent, saying he’d rather “hide my head in a bag” than join the majority opinion of Justice Anthony Kennedy. “The opinion is couched in a style that is as pretentious as its content is egotistic,” Scalia wrote.

 

While Scalia’s adversarial approach may have alienated some colleagues, Greene pointed out it also made the other justices step up their games. “If I wanted to put a finger on his real legacy, it would be that. It’s not that he won adherents over to his views—originalism is not that popular on the Court—it’s that he made his opponents sharp and transparent in the way they have to do things,” Greene said. Justice Ruth Bader Ginsburg  '59 recently made that point, when she credited Scalia for improving her own work: “When I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation."

 

 

Personal remembrances came from Edward Morrison, the Charles Evans Gerber Professor of Law, and Nathan Lewin, a lecturer in law.

 

Before working in academia, Morrison had clerked for Scalia at the Supreme Court and for Scalia’s ideological opposite, Judge Richard A. Posner of the Seventh Circuit Court of Appeals.  

 

“Working for Scalia was like working for my dad,” said Morrison. “He was really loving, but he had huge expectations, so it was a really tough love. He was demanding of himself and his clerks. You can actually see it in his writing—he is very precise in his language, he is careful in his use of precedent, and he demanded that of his clerks.” Scalia's chambers served as “a good pressure cooker,” where “you constantly felt tested by fire,” and disagreements were encouraged to expose weaknesses in legal arguments.

 

“When he chose clerks,” Morrison said, “his desire was to find at least one liberal with a heart of gold, which meant he wanted a clerk who wanted every outcome he did not want but was faithful in using textualist and originalist tools. He wanted an originalist, textualist liberal—there aren’t many out there. It meant that he had a very colorful set of clerks. How many of you knew that [Harvard law professor and liberal political activist] Larry Lessig is a former Scalia clerk? There was an incredible variety in his clerks, because he thrived on combat. You had it on a daily basis.”

 

An economist as well as an attorney, Morrison is an expert on bankruptcy law. He recalled asking Scalia to request writing the Court's majority opinion on a bankruptcy case. Scalia was assigned that responsibility, and Morrison helped him draft the opinion. But when Scalia examined the cases that Morrison gathered to support the opinion, he didn’t approve of his clerk’s desire to extract implicit legal principles from the cases. “He said, ‘That may work in Posner’s chambers, but it doesn’t work here!’ With my tail between my legs, I tried again, and everything worked out well after that. But he had an incredible intensity. That fire you see in his opinions—it was part of his life and the way he engaged with his clerks. He was intellectually tough, his language was precise, and he was always questioning.”

 

 

“There was another dimension to him that you couldn’t see on the Court or in his opinions,” Morrison said. “He was one of the warmest people I ever met.”

 

When Morrison left the Court’s employ, he asked Scalia for a reference letter to sublet an apartment in an Upper West Side co-op building. “You can imagine how many on the co-op board were fans of Scalia,” said Morrison. “I was expecting him to pawn it off on some administrative assistant, maybe the clerk of the Court. But he wrote it himself, and he wrote it in the classic Scalia way. It was very funny, and he made fun of Upper West Siders. That was all the co-op board wanted to talk about—I knew I was in.”

 

Nathan Lewin had argued cases before Scalia, and sometimes disagreed with him, though he referred to the judge as “Nino,” a friend since their days together on the Harvard Law Review. Each year Lewin took his Columbia Law School class to hear an argument before the Supreme Court in Washington, D.C., where they met with Scalia. “At the beginning of the semester, there were a good number of my students who hated Scalia, thought he was a terrible person,” said Lewin. “I can truthfully say that probably 100 percent of the students who came down to Washington, and met with Nino Scalia, loved him when they came back, because he was a lovable, marvelous, open person who was intellectually honest.”

 

“He was just one of those guys,” Morrison said. “No matter how much you disagreed with him, he was just so much fun, so warm, so alive, and yet tough as nails.”

 

 

While Scalia’s legal legacy doesn’t loom large in Morrison’s bankruptcy scholarship, which is primarily empirical, Scalia has profoundly shaped Morrison’s life as a teacher. Morrison recalled once speaking to Scalia, a former professor, about academia. “He looked up on his shelf, and he had all these law review books. He said, ‘Ed, what is the half-life of one of these articles? Two years, four years, if you’re lucky? Imagine the impact of your teaching—that is an impact that lasts generations.’

 

“He was telling me that, when I allocate my energy, think about impact, and the impact is much more durable for most academics through teaching. That advice has brought passion and also skepticism to my teaching, and it’s made me a much better teacher.” said Morrison.

 

“Scalia was incredibly skeptical.  He abhorred softheaded thinking. He developed his own analytic tools, which he justified, defended, and applied in a largely consistent manner. But he knew people would disagree. He was challenging us to come up with our own tools, to defend ourselves. Scalia sometimes gets a bad rap. He’s described as a formalist, but he was a realist in the sense that he was forcing us to be much more candid about the judicial enterprise—and much more skeptical about what judges do.”