Of Our Fallen Professor, Justice Antonin Scalia

A shockwave disrupted the country on the afternoon of February 13, 2016, when we learned that Supreme Court Justice Antonin Scalia had passed away unexpectedly at the age of 79. The fascinating political and legal ramifications of Justice Scalia’s sudden death are yet to unfold, but what is certain is that American law students have lost a brilliant and consequential legal instructor.

One of the earliest lessons of legal education is that legal writing is unique. It is a technical style of writing that privileges logic, efficiency, and clarity above all else. Indeed, to begin to learn legal writing is to shed every creative instinct one may have as a writer in exchange for a Joe Friday-like obsession with facts and law.

In that sense, and stripped away of all the jiggery-pokery, Justice Scalia was one of the most masterful legal writers in the history of the Supreme Court. Rarely would Justice Scalia leave any factual stone unturned, any viable argument untouched, or any element of the law to speak for itself. The master of the scathing dissent, Scalia’s clarity of thought and moral certitude was always evident, especially when pitted against the more flowery or functionalist opinions of the Court.

The act of challenging your first Scalia opinion during a cold call or exam question is something of a rite of passage for a law student, particularly for those who tend to lean in the opposite political direction. His insistent adherence to a conservative brand of judicial restraint rings true as an important principle of our profession, even when the application of that principle rings hollow and feels instinctively wrong.

In advocacy, it turns out, you cannot just shout, “It ain’t right!” and expect everyone to listen. Advocates do not always get to choose their best clients, and they certainly do not get to choose their best facts, but the duty of zealous advocacy always remains paramount. Justice Scalia demonstrated that the way to overcome inconvenient facts and challenge an unsympathetic audience–whether that be fellow justices, a judge, a jury, or a changing America–was to pull back to the universal first principles of equity and judicial restraint. No one reset the terms of the debate better than the late Justice.

That is not to say that Justice Scalia necessarily used his brilliance to its best effect. On the contrary, Justice Scalia was profoundly wrong on some of the most pivotal constitutional questions of our times, including those involving corporate speech, reproductive rights, and civil rights among others. To articulate precisely why Justice Scalia was wrong as a matter of constitutional law, however, was always the challenging part.

As an attorney and an advocate, you are never given the opportunity to hone your legal reasoning skills more thoroughly than when you are forced to argue against Justice Antonin Scalia. Take it from Supreme Court Justice Ruth Bader Ginsburg’s tribute to her great friend and ideologically-opposed colleague:

We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the ‘applesauce’ and ‘argle bargle’—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh.

As a liberal, a person of color, a feminist, a supporter of gay rights, and a believer in the Constitution of the United States as a living document, I will never consider myself a supporter of Justice Scalia. But as a student of law, I will always honor the memory of the Honorable Justice Antonin Scalia as the greatest professor I never knew.

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