Justice Scalia’s death in Texas yesterday represents a tragic loss for the Supreme Court and for our country. His nearly 30-year tenure on the Court is most notable for his adherence to, and elaboration of, the original meaning of the Constitution and amendments as publicly understood at the time of ratification. The brilliant style in which he explained himself in his opinions magnified his impact. He made an enormous contribution deserving of our gratitude. His death is an occasion of deep sadness. It is also a sobering reminder of the role of contingency in human affairs.
Justice Scalia visited Minneapolis most recently this past fall to give the Stein Lecture at the University of Minnesota this past October 20. He was in characteristically feisty form, as one can deduce from Eric Black’s MinnPost report on his lecture.
Planning to return to Washington the next morning, he reached out to the local chapter of the Federalist Society and to the appellate lawyers section of the Minnesota State Bar Association to invite a few guests to join him for breakfast before he departed for the airport. (I was incredibly lucky to be invited by local Federalist Society leader Nate Swanson to attend.) His willingness to stay around and speak to this small group of attorneys showed his deep care about the Federalist Society and the legal profession.
The get-together was off the record, but I don’t think I am violating any trust by noting that Justice Scalia was not done fighting. He looked forward to carrying on for the foreseeable future. Yet he was enormously disappointed by the Court’s past term. He was discouraged by it.
Justice Scalia talked about legal education, legal writing and his dissenting opinions on the Court. His dissents are powerful in the light of history and reason, but their power is amplified by their ferocity, fiery spirt, and their wit. He explained that he wrote them for students who would find excerpts in their law school casebooks. He hoped to open minds and spark independent thought. He was thinking about the future. The video below — Rather Read, Harvard Law School’s entry into ATL’s 7th Annual Law Revue contest — captures this element of his contribution.
Justice Scalia’s death brings to mind the quote from William Hamilton to which James Boswell resorted in the conclusion of his Life of Samuel Johnson: “He has made a chasm, which not only nothing can fill, but which nothing has a tendency to fill up. Johnson is dead. Let us go to the next best — there is nobody; no man can be said to put you in mind of Johnson.”
May Justice Scalia rest in peace. May his large family and many, many friends find consolation in his memory.