September 22nd, 2021


The judge who set words on fire

Wesley Pruden

By Wesley Pruden

Published Feb. 16, 2016

Antonin Scalia would surely be bemused — and maybe even amused — by a lot of the nice things being said about him now, sometimes by unexpected people. He long ago got used to people saying a lot of nasty things, and worse, few of them were original.

Nino, as his friends called him, was a man in full, someone who enjoyed the treasures of the badly abused culture — food, art, music, language and manly arts like hunting. He once carried a spear at the opera, and did it well. But he was clearly a man born to the wrong season.

Though kind and charming, even generous to the abundant fools his critics said he did not suffer gladly (why should he have?), he never adapted himself to the silliness and shortcomings of the tail-end of the age in which he was born. He mocked the obsessive pursuit of the trivial and the superficial by public men with the vapid intensity of a goldfish. But he knew it was a lost cause.

He was the rare lawyer who could speak and write without taking refuge in learned bloviation. This sometimes irritated colleagues with smaller gifts of language and rhetoric. Harry Blackmun, an earlier colleague whose opinions could be read as a surgical anesthetic to put the entire operating-room to sleep, once said of a 30-page Scalia opinion, " it could have been cut to 10 pages if he had cut out the screaming."

But the text of a Scalia opinion, which sparkled with the relish of a man unafraid of putting words together to make them snap, crackle and pop, was eagerly awaited by other colleagues who, not necessarily agreeing with anything in them, read them with much-anticipated guilty pleasure. During oral arguments, he asked more questions than the other justices, occasionally more than the rest of them together, often bringing the room to nervous laughter. A social psychologist at the University of Kansas studied the Scalia archive and concluded that "he communicates a sense of urgency on the bench and his style is forever forceful." Dahlia Lithwick of Slate magazine described him at more colorful length:

"Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement."

After nearly 25 years on the High Court, Mr. Scalia characterized his victories as "damn few," but as he visited law schools across the country, exposing law students to the fresh originalist thinking they were not getting from their professors, he was immersed in the missionary work he liked. His appearances were great box office, typically standing-room-only.

Ruth Bader Ginsburg, his close friend on the Court whose politics and judicial philosophy shared little in common with his, once said her friend was "very much in tune with the current generation of law students. Students now put 'Federalist Society' on their resumes." John Paul Stevens, a justice of the liberal persuasion who served with Mr. Scalia until he retired in 2010, once said of Mr. Scalia, "He's made a huge difference. Some of it constructive, some of it unfortunate." Vice President Joe Biden says he regrets that he had not opposed Mr. Scalia's nomination — he was confirmed by a vote of 98 to nothing — "because he was so effective."

He always had a lot to say, and worked as if he knew the night was coming. Over his three decades on the court he wrote more concurring opinions than any other justice (as if he were impatient that an opinion by his hand could say it better) and only two justices who wrote more dissents. Kevin Ring, who compiled a book of Mr. Scalia's opinions, found the opinions, whether concurring or dissenting, "highly readable. His entertaining writing style can make even the most mundane areas of the law interesting."

Dissents often come with the brightest gems of reasoning, insight and language. Conor Clarke of Slate magazine relished what he found in Mr. Scalia's opinions, especially his dissents:

"His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions — often very funny ones — and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia's opinions read like they're about to catch fire with pure outrage. He does not, in short, write like a happy man."

And why should he have, with the world on fire?

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times.