Clerking for the Federal Court of Appeals for the D.C. Circuit and then for the Supreme Court gave me a chance to work with and for many giants of the American judiciary. But when I met them in that context, they were already giants. I was lucky enough to get to know Antonin Scalia on a human scale, before – only very shortly before – he became larger than life.
During the 1980-81 academic year, my last year of law school, Professor Antonin Scalia of the University of Chicago Law School was a visiting professor at Stanford Law School, where I was a student. He was a specialist in administrative law, and I was about to go to work for a judge whose docket consisted almost entirely of administrative law cases, so it was natural for me to want to take Scalia’s class.
Of course, even then it was no secret that Scalia was very conservative. During the Nixon administration, he had risen through a series of obscure government legal jobs to become Assistant Attorney General for the Office of Legal Counsel, a crucial position which issued legal opinions to the President and all executive branch agencies, and which had become the center of political control within the Justice Department under President Nixon, and Nixon’s first appointee there, William Rehnquist. When the Democrats regained the White House in 1976, he retreated to the University of Chicago. His former boss as Attorney General, Edward Levi, was Dean of the law school, and it boasted the most prominent conservative law faculty in the country at the time.
Professor Scalia cut an odd figure at Stanford. In an atmosphere of perpetual sunshine and informality, he wore a dark suit, white shirt, and tie every day, and walked slightly hunched forward, with his head down, as though a stiff wind off of Lake Michigan and a bit of a snow squall accompanied him wherever he went. Video confirms that he walked that way for the rest of his life, although in recent years he was more prone to smile while he was doing it. He was rumored to have many, many children somewhere, but – unlike other faculty members’ families – they never appeared anywhere near the law school.
More profoundly, he was out of place in academia. Today, it is universally accepted that he was a brilliant scholar, but the elite law school faculties of the late 70s did not see him that way. To left-wing faculty – a majority at most law schools, although not Chicago and not really Stanford – he was simply anathema, a right-wing hatchet man; at the time, they could barely tolerate centrists, much less actual conservatives. But he was out of step with conservative legal scholars as well. The most exciting group of right-wing scholars then was engaged with bringing the rigor of economic analysis back into law. This movement was led by people like Richard Posner and Richard Epstein at Chicago, Robert Bork and Guido Calabresi at Yale, and Henry Manne at George Mason; their crusade had nothing to do with originalism or social conservatism. There were also more traditional conservative intellectuals, like Levi, Herbert Wechsler, John Hart Ely, or Stanford’s Gerald Gunther, who functioned somewhat as high priests and guardians of the delicate, arcane mysteries of American federalism and separation of powers.
Scalia did not fit well with either group of conservatives. In a sense, what the rest of them all had in common was that you had to be as smart as they were to do what they did. It was a game only the elite could play. That wasn’t Scalia’s approach at all. His focus on original intent and clear statutory language was easily comprehensible by anyone, which made his academic work seem lowbrow to his peers. And he was concerned, not so much with having government and the courts make better decisions, but with having them make fewer decisions, especially at the federal level. He was opposed to judicial activism by conservatives as well as liberals, and he had no patience for the endless balancing tests that traditional conservatives espoused. Finally, he was deeply religious, and Catholic, in a movement where neither was common at the time.
Without warm relations with fellow faculty, Scalia came most alive with students. He just loved talking, and arguing, about law. He loved to bait left-leaning students into challenging him, and then to show them how their own principles should lead them to conservative results. His conservatism was thoroughly democratic and blue-collar. He did not waste breath defending wealthy businesses or the Establishment. He, like the liberal students, sought social justice for all, but he believed that was most easily achieved through conservative values, clear rules, and limited government discretion. He was exactly as everyone now knows him to have been: funny and sharp, funny and a little mean, exasperated with the benighted state of things and enthusiastic about how great they might become. The door to his office was always open, and he was always in it, and he was always ready to argue about law.
One day early in the fall semester Administrative Law class, he devoted most of the hour to a vicious critique of a series of cases interpreting the National Environmental Policy Act written by Judge J. Skelly Wright, the appellate court judge for whom I would be clerking after graduation. It didn’t bother me – Wright was a liberal icon; I hardly expected Scalia to approve of him – but one of my classmates told Scalia that I was going to work for him.
Scalia sought me out half an hour after class. He said he hoped I hadn’t been upset by his attack on Judge Wright, and he spoke at great length about what a lovely man Wright was, and how exciting it would be to clerk for him. In that, he was also exactly as everyone now knows him to have been: warm, gracious, and generous. He held ideological grudges, not personal ones.
The big event of the fall of 1980, in the United States, in the world, and in Antonin Scalia’s life, was the election of Ronald Reagan as President. Scalia fully expected to be appointed Solicitor General, the third-highest position in the Justice Department, controlling all appellate litigation by the federal government, and representing the government in the Supreme Court. In the weeks between the election, his open office became a continuous seminar in how to use government litigation strategy to advance the Reagan Revolution. Anyone who cared to come in, and who could fit – the visiting faculty offices back then were not overly large – was welcome to participate. He personally reviewed every case pending in the Court of Appeals nationwide to find the ones most promising to move the law rightwards. The pros and cons of each were open to debate.
The Reagan Revolution was not my revolution, but I was infected by the enthusiasm and excitement Scalia radiated. I sat in whenever I could, a little horrified sometimes, but full of admiration, too. I can’t remember ever witnessing so much simultaneous discussion of high principle, detailed legal analysis, and nitty-gritty tactics. By the end of the year, Scalia had prepared a detailed plan and marching orders for systematic revision of the role of the federal government as presented to the courts.
And then he didn’t get the job. Senator Orrin Hatch intervened, reportedly, and got his candidate appointed Solicitor General instead – Rex Lee, founding dean of the Brigham Young University Law School. Scalia was visibly devastated, heartbroken. The invisible snow squall that went wherever he did became a blizzard. He spent less time in his office, and more time away, and he was noticeably less present when he was around. (He was extremely gracious, nevertheless, when the word went out that I had been picked to clerk for Justice William Brennan, the ultimate liberal icon, after my year with Judge Wright.)
As became clear in only a few years, losing out on the chance to be Solicitor General was the lucky break that made Scalia’s career. Rex Lee never found the right balance between the ideologues around Reagan during his first term and the traditionalists in the courts and the Justice Department. He was a neophyte at Washington infighting, and the opposing forces chewed him up. Reagan’s inner circle would take him to task for not being conservative enough, and the entire Supreme Court was dismissive of him for too often failing to ground his conservative positions in law rather than politics. Scalia would likely have done better, but I think he would ultimately have failed, too. Anyone would have; the job was impossible.
Instead, as consolation Scalia was appointed to a seat on the Court of Appeals in Washington, alongside Judge Wright and future Justice Ruth Bader Ginsburg, among others, with whom he forged a now famous friendship arguing about law. (Political orientation aside, along with other superficial differences, they were like two peas in a pod. Neither was ever happier than when arguing with someone about law.) That relatively small court has produced a third of the Supreme Court nominees in the past 50 years. The rest has been history.