In the wake of the tragic passing of Justice Antonin Scalia, Prof. Arkes shares a personal account of Justice Scalia’s legacy in First Things.
“Friends will be asked in the days ahead to give accounts, or offer statements on his legacy, and it will be so hard to sift through the memories and notes—through the rollicking nights at supper, with jokes and song; through the recall of the oral arguments, made sharper—and funnier—by his interventions; and then to the force of his dissents in both dimensions: written and oral. The writing was pointed, piercing, going to the logical core, but gaining in rhetorical force as it moved to its end. But then also in delivery: he was often angry and incredulous at the outcome, but the dissent was read with an anger subdued, read with a calm voice, perhaps the voice of a father seeking, with some disappointment and regret, to explain to the family gathered around that something had gone wrong.
“’I read that dissent,’ he told me one day, ‘because there were reporters there, and wouldn’t you think they would be interested in the First Amendment?’ His colleagues had just sustained a law in Colorado aimed so evidently at one class of demonstrators—prolifers outside abortion clinics—and requiring them to stay more than eight feet away from people entering the clinic. That was Hill v. Colorado, in June 1980. Nino let Clarence Thomas take over reading the dissent in Stenberg v. Carhart, as their colleagues were willing to strike down a law in Nebraska that barred the grisly procedure known as ‘partial-birth abortion.’ Nino hoped that the sympathies of the media might be recruited to support the ‘freedom of speech’ even of people they found uncongenial. But the sober lesson breaking through was that the pro-lifers alone would be left out of the protections of speech that Nino had been seeking to expand.”
“Nino remarked once that he had never had a course on logic, but he became the sharpest, most unrelenting logician on the Court. He managed with those arts to expose the vacuities that his colleagues were willing to treat as the ‘reasoning’ commanding their judgments.”
“When my wife, Judy, had died suddenly a little over a year ago, Nino and Maureen joined me and my family in a Memorial Mass. I was in the first row of this small chapel and there was no kneeler there. As I knelt, I felt the pain of the floor. But just behind me Nino noticed. And he slipped a cushion under my knees. In a note yesterday, my friend David Forte recalled that moment, which he himself had noticed. Nino, he said, had been my protector at that moment, as he had been in his own way the protector of us all. And so many had barely noticed. No one can take his place in our hearts, and to ask, Who would take his place on the Court is to ask: who is there, by character and wit, who is worthy enough to take up his mission?”
Read the whole piece here.