R.I.P., Antonin Scalia

How I will remember him

I don’t know if Justice Antonin Scalia, of the U.S. Supreme Court, read, or liked, Bulgakov’s The Master and Margarita ― it was, no doubt, much too unorthodox for him, although he would at least have agreed with its insistence that we at least believe that the devil exists. But as Bulgakov’s devil points out, “man is mortal, but that alone would only be half the trouble. What’s bad is that he sometimes is suddenly mortal, there’s the rub!” Justice Scalia himself has proved suddenly mortal, and it is quite a shock.

He was a larger-than-life figure, the sort of person who left no one indifferent, about whom everyone had an opinion ― not infrequently a very bad one. I wrote once that “Justice Scalia is often snarky, but he gets as good as he gives.” And no doubt there will be much criticism in the coming hours and days, as there will also be much praise. For my part, though I have criticized him in the past, I want now to offer praise, even if it is of an anecdotal sort.

Back in 2007, Justice Scalia came to Montreal, to debate his Canadian colleague, Justice Binnie, about the role of a judge in a democracy ― which they both took to mean constitutional interpretation. It was a remarkable debate, though sadly it seems not to be available online anymore (NB: see the update below). Bob Rae, who moderated, remembers it too, as do others who were there, and even some who were not. And, as Emmett Macfarlane has already mentioned, after the debate, Justice Scalia lingered in the room where food and drink were being served ― and spoke to students who quickly surrounded questioned him. I was there, and even got some questions in ― something about constitutional conventions. I was sure, and still am for that matter, that I was right and he was wrong, but he certainly taught me a good lesson that day about debating a judge without being in more-than-full command of all the facts. It’s not a good idea! I wasn’t the worst though. Almost all of the questions that were being asked in that scrum were quite hostile ― George W. Bush was still president, and many were determined to blame Justice Scalia personally for Bush v. Gore. And the thing is, he surely had to know that Canadian students would not take kindly to him ― yet not only did Justice Scalia not try to avoid talking to us, but he spent a good 40 minutes at it, and seemed to rather enjoy the whole business. I must confess, he won me over that evening ― as a person, if not as a jurist.

Of course, he was also often an abrasive man. He could be brutally unkind to his fellow human beings in his opinions, judicial and extra-judicial, as Eddie Clark points out. Still, the image I will retain of him is that of a man who was willing to talk to those who disagreed with him, debate them, and be generous to them. His friend and ideological opposite Justice Ruth Bader Ginsburg might agree with this. At a time when refusing to treat opponents with the least amount of class, and even to talk to them, are often seen as normal, I hope that this memory of Justice Scalia will prove more powerful than the bitterness and divisiveness for which he will also, and alas justly, be remembered.

UPDATE: Mark Mancini, who is manifestly much better than I at searching the CPAC archives, has found the video of the Binnie-Scalia debate. It is here, and you have to click on the right-most link below the box. It is, as he says, well worth watching.

FURTHER UPDATE: Many reactions to the news of Justice Scalia’s death have already been published. There is no point to cataloguing them all, but I will note those by Moin A. Yahya, Michael Dorf, Noah Feldman, and Cass Sunstein, because they all make the same point as I tried to about Antonin Scalia the human being ― that he was generous and happy to talk to people who disagreed with him, including people who were vastly junior to him in years and distinction. (Profs. Feldman and Sunstein also offer very insightful assessments of Justice Scalia the jurist.)

6 thoughts on “R.I.P., Antonin Scalia

  1. Pingback: Antonin Scalia and the challenge of originalism - Policy Options

  2. Never speak ill of the dead — but I will ignore the maxim and speak anyway. I always thought it was unfortunate in the extreme that Scalia could never resist making his arguments without stating vigorously and colourfully that anybody who disagreed with him was not merely mistaken but also stupid, or incompetent, or a betrayer of the judicial institution, or wilfully wicked (or all of them wrapped up together). In his own way, he contributed to a highly uncivil conversation about matters that are at the core of what civil society is about, and which are better and more safely and fruitfully conducted on the assumption that they are matters on which honest and intelligent people may honestly and intelligently disagree. Wrapping even solid and plausible arguments in highly quotable cheap-shot mud so as to bounce it off other people’s faces is a disservice to the conversation itself. The fact that I have worded this in such a way that it equally applies to another “conversation” that is going on in the United States these days is completely intentional. “Privacy is dead” we are constantly told in this age of internet device connectivity, and for people like me that is problem enough; but our southern neighbours have slid into a discourse where “civility is dead”, and that is at least equally unfortunate. However polite and friendly he might have been in other settings, this will in my opinion always be a negative part of his legacy.

  3. Pingback: Antonin Scalia and the challenge of originalism

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