When Justice Antonin Scalia joined the Supreme Court in 1986, I was in his first group of law clerks. Many conversations started out with the justice asking a clerk’s views on something or other. After the clerk spoke for a while, Justice Scalia would often respond, “That can’t possibly be right. What about the Smith case?” or “What about section 203(b) of the statute?” or “What about the First Amendment?”
One key to being an effective clerk was understanding what this meant. It didn’t mean, “You’re an idiot for even suggesting such a thing.” It meant, “Argue with me. Tell me why your view is right and I’m wrong.”
One of the underappreciated facts about Justice Scalia, you see, is that he was a New Yorker. He grew up in Queens. New Yorkers are considerably more prone than most other Americans to say what’s on their mind. But they’re not trying to end a conversation, they’re trying to start one. Because of course New Yorkers love to argue.
There was more to Justice Scalia’s “That can’t possibly be right” than just love of argument, though.
Many years later, I’d get the occasional call from a recent law graduate getting ready to interview for a clerkship with Justice Scalia asking my advice. I’d warn the caller about the coming questions and “That can’t be right” or “That’s all wrong” response from the justice, mention the New Yorker thing — then explain the deeper purpose I thought this type of response served.
Above all, Justice Scalia wanted his clerks to feel comfortable arguing with him because he wanted us to feel comfortable telling him if we thought he was making a mistake.
So he wanted his clerks to be in the habit of defending our views (if they were defensible). Shrinking violets or diplomats or flatterers who’d wilt or be overly deferential, rather than standing up to him if they thought he was wrong, wouldn’t help him get the case or the law right.
And he was remarkably open to reconsidering his own views whenever he got a good argument from one of us.
Which brings us to what truly made him a great justice — namely, the point of all these arguments.
Justice Scalia was one of the greatest legal thinkers, analysts and writers ever to sit on the high court, and also a warm, generous man with a wonderful sense of humor — occasionally, perhaps, just a little too good.
Yet his most important and enduring contribution was to re-establish the view that the Constitution is a form of law — that its meaning, like that of other legal texts, is knowable, that understanding its meaning starts with reading what it says, and that it’s the job of judges to read it, figure it out and follow it.
Back when Justice Scalia first joined the high court, law school professors and justices almost uniformly believed no person of even ordinary intelligence could hold such a naïve view. Rather, they proclaimed that the Constitution’s meaning was largely indeterminate, that the justices themselves created its meaning.
Justice Scalia changed this dramatically. When one of the nation’s most powerful intellects, and one of the greatest writers to ever sit on the Supreme Court, took the view that the Constitution was a law, when he made arguments based on the Constitution’s original meaning — and when he demolished arguments based on other considerations — the impact was huge.
It changed the entire legal conversation.
The idea that the Constitution and other laws are knowable and binding on judges and justices is the foundation for rescuing the entire legal and constitutional enterprise. Because if the Constitution or other laws have no intrinsic meaning and are just whatever the judges say they are, how can anyone follow them? And why should we?
All of us who worked with Justice Scalia — his clerks, his friends and colleagues on the court — are mourning our loss. But as we do so, we should reflect on his crucial legacy: reviving for the modern era a way to understand the Constitution that takes it seriously as a legal document. Like the republic the Constitution’s Framers gave us, this legacy is ours — if we can keep it.
Lee Liberman Otis is the senior vice president and director of the Federalist Society’s Faculty Division. The views expressed here are her own.