A former law clerk for the late Supreme Court Justice Antonin Scalia remembers his friend and boss as legally brilliant, unfailingly gracious and a man who will be regarded as one of the very best justices in U.S. history.
“I think on any list of the top five, he’s on the list,” said Ethics and Public Policy Center President Ed Whelan, who clerked for Scalia during the 1991-92 court session. “People may have different lists depending on what their criteria are, but in terms of brilliant legal analysis, Justice Scalia ranks right at the top.”
Scalia was nominated for the high court by President Ronald Reagan in 1986 and confirmed 98-0 by the U.S. Senate. He served more than 29 years on the Supreme Court and was the longest-serving among the nine justices at the time of his death on Saturday.
In interview after interview, Scalia referred to himself as a textualist and an originalist. And what exactly is a textualist?
“Textualism is so common sense that it might puzzle people that there could be anything else. What a textualist does is look at the text of the law to determine what the law means,” said Whelan.
“The judge’s obligation is to construe the meaning of a legal provision as it was understood at the time it was adopted, focusing on text and of course context too. This isn’t hyper-literalism. We look to the actual law and not some presumed intent that we can concoct to lie behind the law,” said Whelan.
While Whelan says textualism should seem like common sense, Scalia’s approach actually seems radical after decades of liberals pushing their agenda through the courts.
“Somehow in the 1950’s and 1960’s and 1970’s the left, not liking what the law actually said because it didn’t sufficiently promote it’s own agenda, started reading all sorts of purposes into the law and adopted an approach that looked heavily to legislative history so it could manipulate the law to reach whatever result it wanted,” said Whelan.
As Scalia evaluated laws and the Constitution to determine which way to vote on a given case, Whelan says the justice would engage his clerks in a vigorous, “nerve-wracking” discussion to test their skills and sharpen his arguments.
“We learned on that he loved vigorous debate. He really wanted to make sure he got things right and the only way to do that was to test them. Some of that was done orally. A lot, obviously, was done in writing,” said Whelan.
He was also fascinated watching Scalia wrestle towards and reach his conclusion on a case.
“You could just see him as he worked his way through problems. You could see the muscles of his face move as his brain exercised. And then the wonderful ‘a ha’ moment when he reached clarity on a difficult legal issue,” said Whelan.
Once Scalia reached an opinion, he often expressed it with far more color than justices before or since. Scalia was known to use colorful phrases or stinging rebukes to his colleagues on the other side of the ruling.
“He loved language. He particularly loved using figures of speech or phrases that would really distill or capture exactly the point he was making. His colorful language isn’t just excess but it really focuses the mind on exactly what he’s saying,” said Whelan.
Whelan says that approach often confounded those embracing the opposing opinion.
“You read so many of his dissents and look back and see, ‘What did the majority have to say in response to that?’ You discover it said nothing because it had nothing to say and it ended up being the brute power of five justices, or more, deciding a case without engaging his counter-arguments. That was very frustrating at times but he was writing for the ages,” said Whelan.
As a result, Whelan says Scalia’s writings will be textbook material for generations of students.
“Generations from now, if we’re lucky to have this republic survive that long, so long as people are reading Supreme Court decisions, they will savor Justice Scalia’s opinions, both his majority opinions and his dissents,” said Whelan.
And which cases over nearly 30 years stand out strongest for Scalia? Whelan cited three, starting with a landmark second amendment case.
“The majority opinion in the second amendment case in 2008 in District of Columbia v. Heller is a model of originalism. Justice Scalia got a majority on board for his originalist approach there. Of course, some of them have wandered off on other cases when they haven’t wanted to go where originalism would take them. [But this was] a very very powerful reading of the second amendment,” said Whelan.
Two dissents also stand out to Whelan, including Morrison v. Olson in 1988, which dealt with the independent counsel statute.
“He was alone in dissent, saying that that statute violated separation of powers. Years later, virtually everyone agrees with the wisdom of his dissent,” said Whelan.
The third case referenced by Whelan is Planned Parenthood v. Casey, a critical abortion case decided while Whelan clerked for Scalia in which the court effectively upheld it’s rulings in the 1970’s.
“He said this is a matter that the Constitution leaves to the political processes to decide through the democratic processes in each state. By taking this away from the people, by making this judicial power grab, you are corrupting the whole political process and extending the agony here,” said Whelan.
Whelan says Scalia has been proven right.
“Justice (Anthony) Kennedy and the others in the majority pretended that they were resolving the issue for good. I think history has already shown that judicial power grab hasn’t silenced the defense of the unborn and it won’t. He’s been proven right although the majority hasn’t yet accepted his wisdom,” said Whelan.
In recent days, scores of personal stories have emerged about how Scalia easily made friends from across the ideological spectrum, was big-hearted and unfailingly kind. That was certainly Whelan’s experience.
“Sorry I’m pausing. It’s a question that causes me to reflect on his many kindnesses to me,” said Whelan, fighting back tears. “He was present at my wedding. I’m very grateful for that. He was just a generous mentor throughout my career.”
“Whenever I needed sage advice, he was there. I’m just deeply grateful to him,” said Whelan.
