I’d heard all through law school that Scalia always hired one liberal clerk, though my sense is that this practice had waned in recent years. In fact, the process of applying for a Supreme Court clerkship entails applying to all nine justices — the notion being that justices choose clerks and not the other way around. But Justice Scalia was the person for whom I most wanted to work, not because we were ideologically aligned, but because we were not. It had to do with the way he was so deeply vilified — both personally, and as a jurist — by so many of my classmates. He was discussed in almost cartoonish fashion, conjuring images of twirled mustaches and barely-concealed devil horns. It was a time, just after Bush v. Gore and 9/11, when battle lines had been drawn, and it was politically correct to reject wholesale any belief that was not your own.
That approach made me uncomfortable, and I found myself becoming more and more interested in Justice Scalia’s work, eager to understand how someone so clearly brilliant could see the world so differently than I did. It’s why I took the job.
And, in some ways, the job is a strange one. To assist in the writing of opinions, clerks have to get inside a justice’s mind to think as they do and to write as they would. My role was to facilitate his, and sometimes that was easier than others. In one case I worked on writing a dissent — the position held by a minority of the court — with which I fundamentally disagreed on a moral level, but found, as I wrote, that I was drawn to Scalia’s reasoning; his emphasis on precedent, strict textual construction and judicial restraint. While I remain bound not to discuss details of the cases I worked on, I can say that Scalia’s arguments in that case conveyed a clarity not found in the majority’s opinion, which relied on legal and verbal gymnastics in order to reach the desired outcome. His approach had a logic and simplicity that resonated with me, despite my politics. I found myself able to get inside his mind in that moment, to sublimate my own views, and write confidently in his voice. I was proud when my co-clerk told me that Scalia had called it a “knock out.”
There were other days, though, where I found myself sitting on Scalia’s worn leather couch, looking up at Leroy — the mounted elk’s head that dominated the justice’s chambers — wondering how both Leroy and I had gotten there, as Scalia and my three conservative co-clerks all found common ground that I simply could not access. “You really think that?” and “That can’t be right,” were refrains I heard often in response to bench memos I prepared in advance of oral argument.
I’ll admit that I went back and forth between playing the part of contrarian and simply trying to give the justice the recommendations he was looking for. There were times I was pleased when he noted my penchant for disagreement. Once, when my co-clerk gave him a draft of an important opinion, Scalia nodded toward me, smiled and said, “Let’s give it to Mikey,” quoting the old Life cereal commercial, “She doesn’t like anything.” In those moments, I felt I had license to challenge Justice Scalia, and my arguments were always met with energetic debate and his eagerness to prove me wrong. At other times I simply wanted his approval, and for him to tell me that I was finally thinking “right” — which he meant with its full double-entendre.
I missed the mark a few times when I made assumptions about what Justice Scalia would think, based on his political leanings. In one particular criminal case, I tried to anticipate his reaction and gave him the analysis I thought he wanted. But when I suggested he might want to follow the more conventionally conservative line of thinking, he looked at me incredulously and said, “We can’t do that.” There was another case, where we were tasked with writing the majority opinion, when I saw him struggle and ultimately change his mind after realizing that the text of the statute would not support the position he initially wanted to take. That was the one time the Justice — who was very respectful of personal time and valued his own — called me on a weekend and asked me to come into chambers. As we worked through the case together, the power went out in our wing of the Court. Rather than taking a break, we moved our chairs and books into the hallway, using the natural light that came through the courtyard. This prompted Justice David Souter (who was famously averse to using modern technology, including, seemingly, the light bulb) to poke fun at our inability to read in dim light.
If there was a true surprise during my year clerking for Scalia, it was how little reference he made to political outcomes. What he cared about was the law, and where the words on the page took him. More than any one opinion, this will be his lasting contribution to legal thought. Whatever our beliefs, he forced lawyers and scholars to engage on his terms — textual analysis and original meaning. He forced us all to acknowledge that words cannot mean anything we want them to mean; that we have to impose a degree of discipline on our thinking. A discipline I value to this day.
Justice Scalia treated me with enormous respect and always seemed to value my opinion — a heady experience for someone just a year out of law school. I never felt as though he looked at me differently than my conservative counterparts; his trust felt implicit, which is, perhaps, why I struggled so much between wanting to challenge him and wanting to please. He was also, hands down, the smartest person I’ve ever known. What would take me weeks to understand would take him minutes to process. I’ll never forget my first experience handing him an opinion and watching him, in a matter of minutes, type a few lines into his typewriter (yes, a typewriter, even in 2004), and instantly cut to the heart of the issue in a way that I’d simply been unable to do. When I read his new draft, I realized that I’d tried too hard to bridge the difference between his opinion and that of another justice in order to hold our majority. His changes strengthened the argument but also, I feared, risked putting us in the dissent. But Justice Scalia didn’t compromise his principles, even on the smallest issues.
He knew his own mind, and taught me the importance of knowing my own.