Remembering Antonin Scalia

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scalia [The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]

Perhaps it is because I’ve been reading lots of Churchill lately, but in all events I am firmly convinced that there is concrete, substantive meaning to the label, “a great man.” That said, Antonin Scalia was a great man.

I remember that in high school, my father pulled me from class one afternoon to see Justice Scalia speak at Marquette’s Weasler Auditorium. I have an especially distinct recollection of a story the Justice told when asked about the difference between his policy views and his judicial philosophy. He said the morning after the release of the opinion in Texas v. Johnson, the case upholding a First Amendment right to flag burning, his wife hummed a particularly patriotic tune while making him breakfast. I subsequently saw Justice Scalia speak perhaps ten times — at the grand opening of Eckstein Hall, at the Pfister Hotel, at the Union League of Philadelphia, at a private dinner at the Court, and in several ballrooms of the Mayflower Hotel. In the last venue was my latest, and now final, opportunity to see him — he gave remarks on the 800th anniversary of Magna Carta (he insisted on leaving off the definitive article). His remarks were like his opinions: witty and wise, intelligent and insightful, and usually with a sharp elbow passed off as entirely innocent.

Others will recount at greater length the evidence for this proposition: that he was the most consequential justice of our lifetimes. Certainly the conservative legal movement would not exist as it does today without him, nor the Federalist Society as the embodiment of that movement. Ultimately I ascribe three key principles to him: textualism, the rule of law, and the sacredness of the Constitution itself.

Many will focus on textualism, the method of legal interpretation he championed throughout his academic and judicial career. His claim was simple: we are a government of laws, not of men, and that means the job of a judge is to read the law, not to hypothesize about the optimal allocation of rights or resources. But textualism was only one part of his broader commitment to the rule of law. He would sometimes say that every tin-pot dictator has a series of grand parchment promises of free speech, free conscience, and free enterprise; it is the people, institutions, and traditions that ensure those rights are respected and upheld.

And he recognized the special nature of our Constitution. The framers in Philadelphia seized on something unique in the affairs of men: a written constitution, setting forth and locking down the powers of a government, separating those powers horizontally and vertically, promising a more perfect union by respecting the republican nature of government. It is a marvelous thing they did, and yet its efficacy only continues as each generation remains committed to its power, its purpose, its providence.

Antonin Scalia was not only a great man, he was also a good one. I did not know him personally; I recall only once shaking his hand. But I do know well others who were close to him — our own Dean Kearney, and also my former colleagues Leonard Leo and Lee Liberman. His legacy as a jurist is vast and impressive, but his legacy as a man will remain long after the final page of U.S. Reports that bear his signature, not least through his children and his clerks.

Justice Scalia’s seat on the Court was once held by a Milwaukee man, William Rehnquist, before his elevation to chief justice. Rehnquist inherited the seat previously held by Robert H. Jackson. Out of the 112 justices who have served on the Court, all three will count among the handful who shaped the course of our constitutional order, and our country at large. All three were great men.

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