In National Review Online, Prof. Hadley Arkes offers another account of the life and legacy of his friend Justice Antonin Scalia titled, “Antonin Scalia: A Spirited Life in the Law.” Prof. Arkes recounts the discipline of Scalia’s logic, the command of his wit, and the integrity of his character, which all contributed to the unique strength of his jurisprudence.
“Scalia was a relentless logician, and as he sought the logic behind the text he would persistently find himself reasoning back to those principles that were not in the text. In the famous Heller case on the Second Amendment, he wrote the opinion and made the case for the “right to bear arms” as a right that inhered in persons — individuals, not merely militias. He invoked the primary right of ‘self-defense.’ At a lunch a while later, I remarked that I presumed he meant the right of an innocent person to fend off an unjustified assault. That was indeed what he meant. But those words were not in the Second Amendment. And he described this right as ‘pre-constitutional’ — a right that was there before the Constitution was made.”
“He and I would banter in a good-natured way about these things, but no one spoke my own mind more often, or more surely, than he did, on case after case coming out of the Court. Whether it was his resistance to a constitutional right to abortion or same-sex marriage or racial preferences, he spoke sharply, going to the core of things. I used to say that, when he was in dissent, I would read the dissent first — and then read the opinion of the Court to see if it could meet his argument.”
“Scalia himself argued only one or two cases before the Supreme Court when he was at the Department of Justice. And he recalled that, one day when he argued, the Court was largely silent, as it usually was; but Byron White was gracious enough, just before the end, to ask Nino a question. In our own day, Paul Clement goes before the Court without any papers in hand, for he knows that when he gets his first sentence out, the barrage of questions, the assault, will begin. Oral arguments have turned into a raging seminar, with the judges arguing against each other as they argue with — and through — the advocates before them. It was Nino, more than anyone else, who brought that style to the Court. It was a measure of his own scrappiness — his love of the argument, of the flash of wit, but all driven by his restless passion to get at the truth of the thing — to find the ground of the soundest judgment.”
Read the whole piece here.