Ted Olson and his wife, Lady Olson, looked stricken Saturday morning as they entered the basilica where their friend Antonin Scalia would be mourned in a Mass of Christian burial.
“This is a shock we can’t get over. It’s a tragedy,” said the former solicitor general, who had argued many cases before the Supreme Court.
“A national tragedy,” Lady Olson said.
“He was one of a kind. You can’t replace a man like that,” Ted Olson said.
Replacing Scalia — how, when, with whom — is the urgent Washington partisan question of the moment, one that has intruded ungraciously upon what for many people at the funeral is a grieving period. When they say you can’t replace Scalia, they’re not just talking about a seat on the Supreme Court.
Scalia was an icon. That was obvious Saturday from the size of the crowd. Attendees at the Basilica of the National Shrine of the Immaculate Conception included a cardinal, numerous archbishops and bishops, scores of priests, the vice president, the surviving justices, many senators, and judges and lawyers from across the country.
Few Supreme Court justices could fill a jumbo church like that — which is not an insult: Someone like low-key David H. Souter, one of the retired justices who came to the service, probably didn’t mind that no one could pick him out of a lineup even when he was on the court.
Justices, unlike politicians, tend not to be flashy, verbose characters, and by strict rule and tradition they spend their time in a place that refuses to permit television cameras. Deliberations are secret. The final written opinions are not always dazzling as literary ventures, or even readable.
Scalia, however, broke the mold and then shattered it into a thousand pieces. He was by leaps and bounds the court’s most voluble, entertaining, maddening member, and he incited intense passions both positive and negative. He was eager to give public speeches and even do roadshows with his liberal colleague Stephen G. Breyer.
“It’s a huge hole in the court. There’s no one with the consistent intellectual heft and the tremendous writing ability to cut to the quick and just devastate the other side’s fuzzy-headed thinking — to use his word,” former senator Rick Santorum (R-Pa.) said outside the church.
Scalia tore up jelly-kneed lawyers in oral arguments. Among colleagues, he sought no coalitions, happy to be the lone dissenter — as he was famously in Morrison v. Olson (a 1988 case about the constitutionality of independent counsels — yes, that Olson). He had no desire to ever be anything as mutable as a “swing vote.”
Pat Korten, who served as director of public affairs in the Justice Department during the Reagan administration, was walking toward the security gate outside the church before the service, but he already had a sense of the magnitude of this funeral: “This is huge. This is a moment in history that ought to be remembered for many years. Now it’s going to be up to a new generation to pick up where Nino left off.”
Conservatives in the legal world say Scalia served as an icon for them in the same way that William F. Buckley led the way for political conservatives. And yet, because of his writing skills, Scalia has often been compared to Oliver Wendell Holmes Jr., a liberal from a century ago who shared Scalia’s flamboyance with the pen.
Although the service lacked eulogists, it held subtle hints of Scalia’s legacies. Just on the biological side of things, there was the sprawling Scalia family. Clarence Thomas, his close ideological ally, did a reading from the Bible, as did Leonard Leo, executive vice president of the Federalist Society, the organization for conservative legal thinkers that Scalia long supported.
In the crowd were many of the clerks who served under Scalia over the years.
“If you look at today’s Mass and you look at the 125 clerks he sent off into the world, his influence will be felt for a long time,” Eileen O’Connor, a lawyer, said as she left the church on a surprisingly balmy day.
One of those Scalia clerks was Greg Dovel, who worked for the justice in the late 1980s. He didn’t want to talk politics or ideology — he was in mourning.
“I thought he was going to be doing this for another 10 years at least,” Dovel said. “He was the most alive person that I knew. The thing that I remember most about him is his laugh. He enjoyed every minute of the day.”
Beyond inciting all this grief among friends and family, Scalia’s death is a blow to “originalism,” the conservative legal philosophy that Scalia personified. Scalia disdained the notion of a “living” Constitution that molts from time to time. What matters is what the people understood the Constitution to mean in 1787, Scalia believed.
That had been a borderline-crackpot view until Scalia, nominated by President Ronald Reagan in 1986, shouldered it into the highest court. Scalia lost a lot of battles — the inevitable result of his hard-line positions on social issues in a time of cultural transformation — but originalism eased into the mainstream.
On the left, many legal scholars saw Scalia as the archenemy. His critics saw someone whose jurisprudence neatly lined up with his hard-right political views. He opposed Roe v. Wade and marriage equality. Liberals will not likely forget or forgive Scalia’s vote, along with four conservative colleagues, to stop the Florida recount in 2000 and award the presidency to George W. Bush.
Rancor erupted at Georgetown Law this week after the dean circulated a statement of mourning over the loss of Scalia, a Georgetown University alumnus. Even rote acknowledgments of Scalia’s brilliant legal mind in recent days have drawn rebukes; one law professor wrote in Salon that Scalia was unprincipled and the most overrated judge in America.
History will sort it out.
There is little question that Scalia’s death last Saturday in Texas leaves the court in an awkward situation, stuck with a four-four ideological split between conservatives and liberals.
William Bennett, Reagan’s education secretary and now a radio host, stood outside the church and recounted the moment a little earlier when he saw Justice Anthony Kennedy walk into the great, domed basilica.
In a nine-person court, Kennedy had been the swing vote, closest to the ideological middle and most likely to turn four votes into five.
“He used to be the most powerful man in the world,” Bennett said. “Now, maybe not.”