With the passing of Supreme Court Justice Antonin Scalia ’60 has come an outpouring of remembrances and testaments to his transformative presence during his 30 years on the Supreme Court. On Feb. 24, a panel of Harvard Law School professors, all of whom had personal or professional connections to the late Justice, gathered to remember his life and work.
Panelists included Harvard Law School Professor Emeritus Frank Michelman ’60, a former classmate of Scalia; Professors Lawrence Lessig, John Manning ’85 and Adrian Vermeule ’93, who served as Scalia’s law clerks; Professors Charles Fried and Richard Lazarus ’79, who argued cases in Scalia’s court; and Professor Cass Sunstein ’78, who served on the law faculty with Scalia at the University of Chicago.
Dean Martha Minow led off the event: “He shared his great learning, his zest for the law, his passion for debate, his roles and expertise as an academic, a public servant, as a judge, and then as a justice of the United States Supreme Court. … His gifts as a communicator were as substantial as his personal charm.”
Professor Lawrence Lessig
Law Clerk, Justice Antonin Scalia, 1990-1991
“It’s puzzling to many of my friends why I am an admirer of Justice Scalia. Justice Scalia’s politics, his personal preference, his judgment in many cases, are all things I would say I disagree with. But I can’t escape the fact that he profoundly affected how I thought, how I think about the law. And he did that not in his theories, not by what he said, by what he did. I’m not convinced this was true through his whole career. I’ll not make any claim beyond what I know personally. But the experience that was most meaningful to me was to sit as a law clerk and watch him struggle with what he knew his principles said he should do, and what he wanted as a conservative to do. … In every single case where we saw that conflict, Scalia did what his principles said he should do. And what was most moving about that was very quickly when you’re a clerk, you realize they can do whatever they want. And the clerks can write opinions to justify whatever you want. There’s no restriction, except for the restriction you impose on yourself. And when people of great power demonstrate their willingness to restrict their power in the name of something, whether you agree with it or not, whether you agree with the principle or not, it is moving.”
Professor Richard Lazarus ’79
Supreme Court Advocate
“Justice Scalia’s transformative impact on the Supreme Court was not his vote, it was his voice. He changed the way lawyers argue cases. He changed our framework. And so, too, he changed the way the justices, and all judges, analyze cases. Arguments became better, more rigorous, more precise, and less sloppy, and it was true both for written briefs and oral arguments. It will be strange to stand up before that bench and not have Scalia there. I cannot say I’ll miss his vote. …. Justice Scalia was environmental law’s greatest skeptic. In cases I have done, he has been my most persistent nemesis. While I won’t miss his vote, I will miss his voice. And I’m grateful for his enormous public service and contributions to a nation he clearly adored.”
Professor Adrian Vermeule ’93
Law Clerk, Justice Antonin Scalia, 1994-1995
“I want to make a suggestion about the Justice’s ruling virtue. I think it was courage. So, many people remarked on his brilliance, his joie de vivre, his loyalty. I think all those are true, but I think that courage underlies them all in some essential way. … His brilliance, it’s not just a function of IQ, but it stemmed from a kind of courage to follow a chain of reasoning wherever it might lead and ignore the socially induced constraints and self censorship that so many times caused us to stop short in our reasoning. His joie de vivre is famous. He was a man bubbling with good humor. I think that’s, in part, a product of courage, too. Fear’s great enemy is joy, and this is a man who was joyful because he was often unafraid. And his loyalty, his courage not to fall away, not to deny a person or deny one of his commitments even when the whole world was clamoring for him to deny them.”
Professor John F. Manning ’85
Law Clerk, Justice Antonin Scalia, 1990-1991
“I want to tell you about a man I knew who was my friend and teacher. I clerked for Justice Scalia almost 30 years ago when he was a young man and a fairly new justice. … What struck me immediately about my new boss was that for him, it was all about the ideas, about mixing it up, about arguing so that you’d come out closer to the truth. Sometimes, he’d have to remind us, ‘Hey, it’s my name that’s going on the opinion.’ And sometimes, that would be followed by, ‘And I’m not a nut.’ But that just underscores how free he made us feel to express ourselves and to disagree with him. … Justice Scalia was also a natural teacher. He would always tell us that part of what we were entitled to as law clerks was to understand the court. And so after every conference, he would call all five of us into his office and ask us each to predict case by case and justice by justice how the case had been decided by the court. It was unspeakably fun, and he was always playful about it. And he’d rewrite our drafts from top to bottom—well, at least he would rewrite mine from top to bottom. And he would always tell us why, and it would help us learn. We all tried all year to get a Scalia-like line into one of the opinions. But no one could write like Justice Scalia. The Justice Scalia I knew was also fun and funny, albeit, I’ll have to admit, in a nerdy kind of way. He’d walk into our office muttering something in Latin like, ‘Praemonitus praemunitus.’ And we’d say to the justice, ‘We have no clue what you’re saying.’ And he’d feign shock and disappointment. ’You mean, you don’t know praemonitus praemunitus? You’ve got to know that one.’ And then he’d gently walk us through the Latin roots of those words so that we would understand, even 30 years later as it turns out, what they meant and why.”
Professor Cass Sunstein ’78
Colleague of Antonin Scalia, Law Faculty, Univ. of Chicago
“I want to say two things that are kind of questions in the spirit of Justice Scalia’s own love of argument. I think that he was not at his very best when his convictions were most intensely felt. Some of his technical opinions are kind of transcendently good, where his convictions were kind of red in color, not communist but deeply felt. The large abstractions, I think, being his less enduring than they would otherwise have been. That’s one question. The other question has to do with existence of originalist blind spots. There are areas … — standing, affirmative action, and takings are three— where the historical record is not clearly supportive of his ultimate judgments. And I think it’s fair in the spirit of welcoming contestation to wonder whether the positions he has defended in those three areas are compelled by or are consistent with the original understanding. Still, Justice Scalia was not just a very significant justice, he was also a superb one. You’re blessed to be working on law in the time when Justice Scalia has been on the scene. It’s a little like people being around at the time, I think, of Holmes and Jackson and Brandeis and the other very few greats. Not just a significant and quite superb justice, but even more important a deeply good human being.”
Professor Emeritus Frank Michelman ’60
Classmate, Justice Antonin Scalia, HLS Class of 1960
“I think my friend, Nino, was an exceptionally gifted man in many ways, of which I stand sometimes almost in awe. I think he made major contributions to shaping up and upgrading our practices of constitutional legal contention in ways my colleagues have mentioned. I think he was a man of courage and spirit and dedication to do the right thing and the best for his country and his calling, as it was given to him to see the right thing. … I admire [Justice Scalia] for sticking his neck out, putting out on the table a method for judging constitutional cases, a judicial philosophy as we sometimes grandiosely call it. … So, what do we think, and what will history say about that judicial philosophy’s suitability to the time and the country and the conditions in which it was brought to bear? What do we think about its founding premise? Do we really do best to treat our Constitution as a lock-in for more or less specific political ideas and conceptions accepted by majorities and on their minds at the time of the formation? Would we do better to treat it as an open-ended pointer towards a better future and continued progress toward liberty and justice for all? Is the answer sometimes one and sometimes the other?”
Dean Martha Minow
“… ‘Just call me Nino.’ That’s the first exchange that I had with Justice Scalia. I was a dean, I met a lot of famous people. That’s not usually how the conversation begins. His warmth and his willingness to just be genuine was what overwhelmed me. And in each of the interactions that I’ve had with him, that was the overriding experience. His interest in having a genuine conversation, connecting about family, about religion, about law, about ideas, thorough, complete, generous and engaging. At the same time, he knew I didn’t agree with almost anything that he actually concluded, whether it was his methods of interpretation or where he came out in many cases. It didn’t matter to him. In fact, I think it made it a plus. He really likes, liked, argument and liked discussion. And made the teaching-learning exchange process fun. There’s just no other way to describe it.”
Professor Charles Fried
Former U.S. Solicitor General of the United States
“I have known, I knew, Antonin Scalia since 1985. I was a young, younger, lawyer in the Justice Department and he was still a court of appeals judge. And whether it was meeting him at a Federalist Society jamboree for really young lawyers over pizza and beer, or at the poker table, or arguing to him on the Supreme Court, or watching him as others argued to him, one came away with a sense of energy. This is life, one is enlivened by his presence. And now he’s gone. Well, he’s not because of his writing, which we will encounter in generations to come. And so I thought I would just give you a little bit of that voice and contrast it. … He is in that’s great trilogy of Holmes, [Robert] Jackson and Scalia. But there’s a difference. Let me give you one fairly characteristic to me, Holmes in Buck v. Bell. Very memorable. “Three generations of imbeciles is enough.” It is not an argument. It is not the conclusion of an argument. It is just what he said, there’s nothing more there. But it’s memorable. In McAuliffe v. New Bedford [regarding] a policeman who’d been fired for engaging in political activity: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” That isn’t the conclusion of the argument, that’s the whole argument. Well, compare that to Jackson, who is really very close to Scalia both in my estimation, and in his intellect. Here is Jackson in the steel seizure case: “I am quite unimpressed with the argument that we should affirm possession of emergency powers without statute.” And his line, “such power either has no beginning or it has no end.” That is not the whole argument. It is the summation of an intricate, careful argument, which any law student knows, which goes on for pages. But the maxim sums it up. And that is the case with Scalia. There are memorable maxims, but they either introduce or sum up a careful, intricate and memorable original argument. Here you are in the independent counsel case, Morrison v. Olson. … In this case, the maxim comes by way of introduction. “That is what this suit is about. Power. The allocation of power among Congress, the President and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish.” Frequently, an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing. This wolf comes as a wolf. And there follows an original and remarkable piece of analysis. It’s not just the maxim.”