Scalia’s Legacy

By Mona Charen

Thursday, October 12, 2017

I knew the late Justice Antonin Scalia a little, and, like millions of others, I was an avid fan of his jurisprudence, the great bulk of which he produced after I was no longer a law student — so much the worse for me.

What do I have to do with it? Nothing, except that reading opinions as a law student was often like trying to swallow great bowls of sawdust — without milk. Very few judges can write well. On the rare occasions when I came across a decision by Learned Hand, I would practically weep with gratitude for his clear, forceful prose.

Antonin Scalia was not just a great stylist for a jurist, he was a great writer for a writer. Most of his work, though, obviously, was in the form of opinions and dissents, and even the best Supreme Court opinions are required to include copious citations in the text, which, for the general reader, can be distracting speed bumps. That’s one of the many reasons to rejoice at a new collection of Scalia’s speeches.

Scalia Speaks is a joint effort by Ethics and Public Policy Center president Ed Whelan (a former Scalia law clerk) and Christopher Scalia, one of the justice’s nine children and a former English professor. It offers even the non-specialist an almost intimate picture of one of the giants of our age. Here, in vivid prose, without textual clutter, is his case for originalism, against the “living constitution,” and for judicial modesty.

Just as compelling are the other dimensions of Scalia’s life and personality that shine through. In 1997, the University Club of Washington gave the justice a sports award. He began with characteristic drollery: “I have been asked many, many times to what do I attribute my well-known athletic prowess.” He then related the games and sports he had played as a kid in Queens, New York.

The speech is a veritable time capsule, conveying an almost unrecognizable era when unsupervised kids devised their own games using little more than a spaldeen ball and a broom stick. “There were no soccer moms because there was no soccer. Americans overwhelmingly preferred baseball, a game in which a lot of players stand around while not much happens, to soccer, a game in which people run back and forth furiously while not much happens.” The man who would famously refer in one Supreme Court opinion to “argle-bargle,” recalled fondly that one of his childhood games was called “mumblety-peg” and consisted of throwing a penknife into a square marked off in the dirt. “In those days, nobody worried about kids carrying knives.”

There is much to learn in these speeches about the Constitution, Western civilization, the intersection of faith and public policy, American history, and, of course, the law. But the thread that connects all is Scalia’s bone-deep appreciation for the primacy of character. Again and again he stressed that a decent society ultimately rests not on laws or customs or even history but on the character of the people. He gave many speeches at universities, law schools, and (if one of his nine children or numerous grandchildren was in the graduating class) at high schools.

A recurring theme was the purpose of education, which he believed was not only to instill knowledge, but to build character. Scalia quoted his own father, a professor of Romance languages and no intellectual slouch himself, who advised: “Brains are like muscles, they can be rented by the hour. The only thing that’s not for sale at any price is character.”

Scalia’s mind sparkled like a gem, but perhaps, in our turbulent time, the most important takeaway from this collection is the lesson it teaches about civility.

The national mood has changed even since Scalia’s death. So many of us today are marinating in the pleasures of hatred. Justice Scalia was one of the most skilled polemicists of our time, but he was the opposite of a hater. He had an open, generous nature. Some of the eulogies he offered for friends are included in Scalia Speaks, and they convey just how perceptive and appreciative he was. The most important things in life — work, family, attitude, piety — are the things he treasured in others. And though neither MSNBC nor Fox News would choose to focus on this, he didn’t allow political differences to poison personal relationships. Justice Ruth Bader Ginsburg was among his closest friends. He taught Justice Elena Kagan to hunt.

Justice Ginsburg provided a warm introduction, in which she revealed that she and Scalia used to trade drafts, the better to hone their arguments. “If our friendship encourages others to appreciate that some very good people have ideas with which we disagree, and that, despite differences, people of goodwill can pull together for the well-being of the institutions we serve and our country, I will be overjoyed, as I am confident Justice Scalia would be.”