Justice Antonin Gregory Scalia—Nino to his friends—died in his sleep on February 13, 2016, age 79. He was the 45th justice to die in office since the beginning of the Supreme Court. He was the first Italian American to serve on the Court. He was also my friend.
People often criticized Nino for sarcasm in his opinions, whether he wrote for the majority or spoke in the dissent. Indeed, there were efforts made, from time to time, to discipline him as a judge, because some said his opinions were caustic. Professor Gary Peller, who teaches at Georgetown, reacted to his death by sending a campus-wide email telling everyone that the justice “was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” Georgetown was Nino’s alma mater. He was the valedictorian of the Class of 1957. Three years later, he graduated magna cum laude from Harvard Law School.
Nino did have the gift of pointing out the folly in the arguments that others made. He was like Juvenal, who said, “It is difficult not to write satire.” Some protested, in particular, that he was disrespectful of Justice Ruth Ginsburg when his opinions sharply criticized her. Well, the two were best of friends. She and her husband would spend New Year’s Eve with Nino and his wife. The two families vacationed together. Ginsburg knew that Nino was attacking her ideas, not her. Any good lawyer knows the distinction between a bad idea and a bad person.
Other people expressed great happiness at news of his death. Another Georgetown law professor, Rosa Brooks, anticipated that Nino’s death would be greeted with, “joyful private choruses of ‘Ding, Dong, the Witch is Dead.’ Or maybe not so private.”
No one who reads his opinions would recognize the man based on these bitter comments from professors who, ironically, complain about bitterness. Many academics live in a cloistered world and do not understand the difference between disagreeing and being disagreeable. Nor could they understand Justice Elena Kagan, no ideological soul mate, who was teary-eyed when she and the other justices paid their respects.
He was an unusually personable, affable, and warm human being. I remember a liberal reporter told me that when she interviewed him for a book she was writing about another justice, she was surprised how genial and gracious he was. I was not surprised. His opinions and his logic could be cutting but he never was.
I knew him before he was a justice, but our paths would only cross once every few years or so. I remember walking out of an elevator one day in the Supreme Court building. He did not know I was there. He said, “Oh, hi, Ron. I didn’t know you’d be here.” He always called me Ron, and he always remembered my name. I was just one of many people he met, and I was not a particularly important one, but he always remembered my name. That is a memory I cherish.
Years ago, newspapers and commentators criticized Nino because he said, “Be fools for Christ.” It was all over the newspapers at the time, and the news said he sounded foolish. Search Google for “scalia fools for christ” and you will get about 1,180,000 hits. No reporters or news editor recognized that he was quoting St. Paul, 1 Corinthians, 4:10.
I was chatting with Nino when that happened, and told him that I was surprised that a reporter, someone who makes his livelihood by writing, was unfamiliar with that famous biblical quotation. He said that he had given a similar speech for years, typically at prayer breakfasts. He said that perhaps reporters did not cover prayer breakfasts, because they occur early in the morning. Eventually, one did cover the speech and thought what Scalia said was actually newsworthy. So did all the others who never read First Corinthians or the scores of books with “fools for Christ” in the title. Just type “Fools for Christ” into Google Books, and you will see.
When he learned that my parents had migrated from Italy, he told me that his father, Salvatore, came to the United States at age 17. Eventually he became a professor of Romance languages at Brooklyn College. His mother was born in the United States, but her parents came from Italy as well. We both agreed that we were so glad our parents came to America because it is the land of opportunity.
Supreme Court watchers have proven—yes, I mean proven—that Nino was the funniest justice on the U.S. Supreme Court. Indeed, he was the funniest by far. Out of six Supreme Court terms dating back to 2004, Professor Jay Wexler of Boston University studied the transcripts of Supreme Court oral arguments and showed that Nino’s comments and questions were responsible for about 40 percent of the all laughter (352 out of 919 laughs). Another study, in 2012 by Ryan Malphurs, a litigation consultant and communications expert showed that Scalia drew even more laugher than the transcripts showed (64 percent funnier).
Piers Morgan interviewed him in 2012 for CNN and asked him the secret to his long marriage, over 50 years, to his wife Maureen. Nino explained that she “made it very clear early on that if we split up, I would get the children.” They had nine of them, and 36 grandchildren. “In a big family,” he said, “the first child is kind of like the first pancake. If it’s not perfect, that’s OK. There are a lot more coming along.”
As a D.C. Circuit judge, he began one opinion as follows:
“This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’” Community Nutrition Institute v. Block, 749 F.2d 50, 51 (D.C. Cir. 1984).
There were no dissents.
As his 1986 Supreme Court confirmation hearings, he said, when asked about antitrust law, “In law school, I never understood it. I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.”
In the course of his majority opinion for the Court protecting the free speech right of elected judges, he said, “Campaign promises are, by long democratic tradition, the least binding form of human commitment.” In his dissent in United States v. Windsor, he complained about the majority’s “legalistic argle-bargle,” a word I discovered was real when I had to look it up. The Oxford Dictionary defines it as meaningless talk or writing nonsense.
In Maryland v. Craig, the Court held that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face confrontation with the witnesses during the trial. Justice Scalia, dissenting (and joined by Justices Brennan, Marshall, and Stevens) disagreed. He ended the dissent by saying, that “The Court has convincingly proved that the Maryland procedure,” gives—
“the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.”
In Barnes v. Glen Theatre, Inc., the dissent argued that there is a constitutional right to public nudity. Scalia’s concurrence responded, “Perhaps the dissenters believe that ‘offense to others’ ought to be the only reason for restricting nudity in public places generally. . . . The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd.”
Now he has departed from this life. As for those who hate him—well, the only way to avoid the hate of some people is to leave no footprints. Nino left many footprints.