The wisdom and wit of Scalia

During Justice Antonin Scalia's tenure on the U.S. Court of Appeals for the D.C. Circuit, a case about the regulation of mechanical meat processing came before the court. As he told an audience once, "I had to read a lot about hotdog ingredients," and he got to know more than any person should about machines deboning chickens. It also gave him the opportunity to start his opinion in Community Nutrition Institute v. Block as follows:

"This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that 'No man should see how laws or sausages are made.'"

He displayed his wit early in his tenure on the U.S. Supreme Court. In his second term, many of the court's clerks created a surprise celebration of Justice William Brennan's 30th anniversary on the court. While the justices were in conference, the clerks had arranged in the corridor leading from the justices' conference room to Brennan's office a trail of placards with the names of some of Brennan's famous cases. When the justices emerged from their conference, they traversed a hallway with case names summarizing Brennan's handiwork.

Down the hall the justices went, walking past the famous decisions: "Baker v. Carr," "New York Times v. Sullivan," and on and on. At the end of the corridor, after viewing the arc of Brennan's work, Scalia remarked to him: "My Lord, Bill, have you got a lot to answer for!"

Justice Scalia has been criticized for having a harsh tone in his judicial writings and for being an intemperate questioner at oral argument. These criticisms miss the mark. New Yorkers have a term for their forward, challenging and sometimes obnoxious way of interacting: We call it conversation.

I had the pleasure of meeting Justice Scalia on a couple of occasions when he was a guest of the Federalist Society in San Francisco. In person, he was gracious and engaging. He reminded me of my father. Like the late justice, my father was a devout pre-Vatican II Catholic who grew up in Queens, New York, went to a Jesuit high school, a Catholic college, married an Irish-American woman, became a lawyer, and had more than a conventional number of children.

My father, like Justice Scalia, also showed his respect for people by testing, probing, challenging, engaging and laughing. I recognized in him the "New York values" that I know: a generosity of spirit, intellect and willingness to engage, like my father had. The news of Scalia's death thus felt a deep and personal loss to me. That warmth and generosity is what gave him the ability to argue with his colleague Justice Ruth Bader Ginsburg during the week and enjoy a beautiful friendship with her and her husband (also New Yorkers) outside the office.

Justice Scalia's ability to turn a phrase enhanced his legal legacy. In his lone dissent in 1988 against the independent counsel law in Morrison v. Olson, he noted most threats to the separation of powers come "clad, so to speak, in sheep's clothing," but of the independent counsel he wrote, "this wolf comes as a wolf." The suboptimal experiences of independent counsel in the Iran-Contra and Whitewater affairs proved his point. The wisdom of Justice Scalia's prescient opinion became widely accepted across the political spectrum. Congress, with bipartisan support, declined to renew the independent counsel law based on the flaws Scalia predicted.

He could pinpoint the flaws in an argument with a well-aimed barb. When a deputy solicitor general suggested to the Supreme Court during argument of the Citizens United case that the Federal Elections Commission could ban a book funded with corporate money if it contained a suggestion that a reader vote for a particular candidate, Scalia asked, incredulously, "We are dealing with a constitutional provision, are we not, the one that I remember which said Congress shall make no law abridging the freedom of the press?" That question remains unanswered by those who would reverse Citizens United.

In his decisions, and especially his dissents, he articulated a judicial method focused on the analysis of text. To Scalia, words mattered. With the force of his arguments, he consigned dubious judicial methods like the analysis of "legislative history" to the margins of stray amicus briefs. Instead, he expected legislators to make their wishes known in the text of the statutes that they passed, not in their speeches to each other. Likewise, he expected judges to examine statutes closely and to give force to the legislature's words unless they clashed with the text of the Constitution.

He once said, "If you're going to be a good and faithful judge, you have to resign yourself to the fact that you're not always going to like the conclusions you reach. If you like them all the time, you're probably doing something wrong."

Justice Scalia will be sorely missed. His ideological foes saw him as an able opponent, his friends a happy and courageous warrior for worthwhile ideas. His written legacy will continue to inform any discussion of our law and our constitution and will show future generations that style and an occasional laugh helps any argument.

David A. DeGroot is president of the San Francisco lawyers chapter of the Federalist Society.