Years ago, I attended a small gathering honoring a leading Sicilian politician in Washington. Since I was raised in a Sicilian family, I relished the opportunity to talk about Italian culture and food with an animated paisan. As we drank and toasted with Italian wine, one voice constantly boomed above the rest with a “Cent’Anni” toast for everyone to “live 100 years.” It was Associate Justice Antonin Scalia, who regaled the group with his tales and jokes. We all chatted away near an open bay window when security guards approached and explained that the Italian politician had been the subject of Mafia threats and that they were worried about a hit team in Washington. Scalia would momentarily acquiesce, then quickly gravitate back to the window so he could continue to joke and laugh with the group. He was in his element; a possible hit team was not going to interrupt a good story.
Throughout his 30 years on the court, many tried to move Scalia, with equally limited success. As the court shifted to the left and constitutional analysis became more fluid, Scalia remained planted in his spot.
The Supreme Court is known to change people. Some justices, such as Byron White, came to the court as liberals and moved sharply right. Others, like William Brennan, John Paul Stevens and Harry Blackmun, were appointed as conservatives and moved sharply to the left. Scalia stood still. He came to the court with a well-defined jurisprudence that remained remarkably consistent throughout his tenure.
What made Scalia an icon for the right was the clarity and passion that he brought to the court. Like Louis Brandeis and Oliver Wendell Holmes, he was a “great dissenter” who refused to compromise on his core beliefs. He was entirely comfortable being a dissent of one. And he was greatly discomfited by the idea of exchanging principle for some plurality of votes on a decision. In oral argument as well as in his opinions, Scalia was direct and transparent. He was, in a word, genuine.
Ironically, Scalia’s passing comes at a time when the public is craving precisely the type of authenticity that he personified. The rejection of establishment candidates in both the Republican and Democratic races reflects this desire for leaders who are not beholden to others and unyielding in their principles. That was Nino Scalia. Love him or hate him, he was the genuine article. At times, as in the decision in Kyllo v. United States barring the warrantless use of thermal imagery devices by the police, Scalia would break from his colleagues on the right of the court. While many disagreed with his principles, he at least had principles and remained faithful to them from his first to his last day as a justice.
Scalia clearly relished a debate and often seemed to court controversy. It was a tendency familiar for anyone who grew up in a large Italian family: If you really cared for others, you argued with passion. Fights around the table were a sign of love and respect. Perhaps it was this upbringing that made it so hard for Scalia to resist a good argument inside or outside the court. He sometimes spoke on issues involved in cases coming before him, which was ill-advised. He was the arguably first celebrity justice. Ironically, his close friend on the court, Ruth Bader Ginsburg, has maintained the same type of following from the left side of the bench.
It was an irresistible impulse that likely cost Scalia the chance to become chief justice. That position went to a jurist of a different cut: John G. Roberts Jr. Where Scalia felt compelled to speak his mind, Roberts spent a career avoiding controversial comments or associations. There is no question that restraint can make for a great chief justice. But the directness can make a great justice, too. Indeed, Scalia’s opinions are likely to withstand the test of time because they espouse a consistent and clear jurisprudential view. He was not one to compromise. Instead Scalia waited for the court to form around his position rather than tailor a position to fit the court.
Of course, Scalia’s comments could border on the brutal. At American University, he told law students that he saw little point in selecting students from outside the top schools because “you can’t make a sow’s ear out of a silk purse.” I strongly disagreed with this statement, but I also knew that Scalia was (once again) voicing a view that other justices privately hold yet do not publicly admit. Scalia did not evade such issues; he embraced them. He believed convictions should be tested and defended if they are to be maintained.
What made Scalia persona non grata with many legal intellectuals made him an icon for millions of average citizens. In a city that seems to overflow with doublespeak and guile, Scalia spoke clearly and passionately about the law. He often chastised his colleagues for assuming the position of a super-legislature and denying the public the right to solve difficult social and political issues. He railed against inconsistency in legal theory and the proliferation of different tests by the court to justify its conclusions. He often hit his mark with these critiques: While I disagreed with Scalia about privacy and gay rights, his critique of Justice Kennedy’s new “liberty interest” in Obergefell v. Hodges correctly challenged the majority on a new and undefined right. One could disagree with Scalia and still recognize the extraordinary depth and scope of his analysis. When he had a majority, that depth gave his opinions lasting quality, as with his foundational work on the meaning and purpose of the Takings Clause in Lucas v. South Carolina Coastal Council.
Scalia resisted the legal indeterminacy and intellectual dishonesty that he saw as a corruption of modern constitutional analysis. He believed that the law was not something that should be moved for convenience or popularity. Neither was he. He finished in the very same place he began in 1986. In the end, he is one of the few justices who can claim that he changed the Supreme Court more than the court changed him.