I first met Antonin Scalia in the winter of 1977. He had just completed a five-year stint in the Executive Branch serving Presidents Nixon and Ford. With Jimmy Carter’s election, Nino, as he was known, needed something else to do. He had spent some time earlier as a professor at the University of Virginia Law School, and decided that a return to academia made sense. He applied for a position at the University of Chicago Law School, where I was then a relatively young faculty member.
The faculty voted to offer Nino a position, and he joined us that fall. Nino was then 41 and I was 30. Because we both taught Constitutional Law, we became not only colleagues, but friends. We agreed about almost nothing and we argued constantly. I was an ACLU-type who had served as a law clerk to the very liberal Justice William Brennan and who very much admired the achievements of the Warren Court. He was of a rather different frame of mind. But our arguments, though intense, were always respectful and productive.
At the personal level, Nino and I both had daughters who were in school together and we both participated regularly in the Law School faculty’s monthly poker game. Nino was lively, engaging, smart, and funny. He used to make up absurd games for us to play when he was the dealer. He could be quite charming, even though he was “wrong” about most things legal.
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After the election of Ronald Reagan in 1980, it was inevitable that Nino would return to government in some capacity. Reagan appointed him to the United States Court of Appeals for the District of Columbia in 1982 and then to the Supreme Court in 1986. As a renowned conservative and constitutional originalist, Scalia was a natural for Reagan. His appointment was part of Reagan’s quest to remake the Supreme Court. His goal was to shift the court’s direction sharply to the right.
A central issue driving the Republican Party was abortion. In a memo on Nino’s nomination, White House staffer Patrick Buchanan invoked passionately, if ungrammatically, “the cruciality of the Supreme Court to the Right-to-Life Movement,” a movement that could, Buchanan noted, “provide the Republicans with the decisive margins” in future elections. Nino was the perfect choice. No one doubted for a moment his views on the issue.
Nonetheless, when asked by Sen. Edward Kennedy during his confirmation hearings whether, if confirmed, he expected to vote to overrule Roe v. Wade, Nino deftly responded: “Senator, I do not think it would be proper for me to answer that question.” He was confirmed by a vote of 98-0. In the first abortion case Nino heard as a member of the Supreme Court, he called for Roe to be overruled.
Nino and I stayed in touch over the years, but in 2007 we had a very public falling out. After the court handed down what I regarded as a particularly unprincipled 5-4 decision in a highly controversial abortion case, in which the court upheld a ban on so-called “partial birth” abortions, I published a rather provocative op-ed noting that all five justices in the majority were Catholic, and suggesting that their religious views might well have overshadowed their constitutional analysis. Frankly, this upset Nino quite a bit and he ranted both privately and publicly about my remarks.
After a while, though, we made up, and he thereafter returned to the University of Chicago Law School, where he gave generously of his time through a public lecture, teaching a class, and meeting with students and alumni. Two months ago, after he made some controversial comments from the bench during oral argument in an affirmative action case, I wrote an op-ed defending his questioning. He very graciously emailed me to thank me. That was, sadly, my last personal contact with him.
In his 30 years on the Supreme Court, Nino was a passionate—sometimes too passionate—advocate for his positions. He was a brilliant analyst, an extraordinary writer, and fervently committed to his views. He won some huge victories for his positions, including a series of 5-4 wins on such profoundly important issues as gun control (unconstitutional), campaign finance reform (unconstitutional), and affirmative action (unconstitutional).
But he also had some wrenching losses, most obviously on abortion, sodomy, and same-sex marriage. These were issues that mattered deeply to Nino. As a legal theorist and an originalist, he furiously rejected the argument that the Constitution could properly be understood to protect rights that clearly had not been anticipated by the Framers of the Constitution.
He resisted without qualification the notion of a “living” Constitution, of a Constitution whose meaning could evolve over time. But it went deeper than that. Although he would hate me for saying this, Nino’s views on these issues were also colored by his moral understandings and beliefs. And that was one of his failings as a justice.
In the end, I suspect Nino’s greatest disappointment was that he could never persuade his colleagues to embrace his originalist vision of constitutional law. When he was appointed, he and Robert Bork were the two most visible champions of this theory. Given that 12 of the last 16 justices to join the court were appointed by Republican presidents, I have no doubt that Nino expected his vision to triumph. But it hasn’t. With but a few exceptions, even his Republican-appointed colleagues have not embraced his originalist approach to constitutional interpretation.
In recent years, Nino’s opinions have become increasingly testy and acerbic, even though he still won most of the time. If he could speak to us at this moment, my guess is that he would say, with some annoyance, that when all was said and done his colleagues simply failed to see the light.
Though we never much agreed on anything, I liked Nino greatly as a person and as a friend, and I deeply respected his intellect. I may not miss his votes as a justice, but I will miss him. He added sparkle to the court and to the lives of those who knew him.
