It began, for me, with a voice over the phone in May 1977: “Hadley, this is Nino Scalia.” I’d never met him, but in the most generous way he was coming to do a commentary on the paper I was offering at the end of my year as a Fellow at the Woodrow Wilson Center of the Smithsonian. He had been in the prestigious Office of Legal Counsel at the Department of Justice in the Ford Administration. But now, as he said, “The people’ had thrown us out”—had turned Gerald Ford out of office in the election. Nino had found refuge at the American Enterprise Institute before returning to his real vocation as a teacher, this time at the law school of the University of Chicago. Twenty-one years later he would write me to say that the youngest of the nine Scalia children, daughter Margaret (or Meg) was interested in Amherst College. “And I figure,” he said, that if the place has tolerated you for 30 years now, it can’t be all that bad.” Yes, it could be, but Meg flourished there. And I myself became more absorbed in this loving, rolling feast of a family as the years went on. At times I’d have to remind Nino when his kids were born: “Catherine is 1966, Mary 1968, Paul in 1970 …” I had a strange memory for these things, a picker up of trifles. But then the news coming in on Saturday, the shock of his death, came with a force that could tilt the earth on its axis. The first response was disbelief and denial—that someone so life-giving, and so vital to the country right now, should be ripped away from us.
Friends will be asked in the days ahead to give accounts, or offer statements on his legacy, and it will be so hard to sift through the memories and notes—through the rollicking nights at supper, with jokes and song; through the recall of the oral arguments, made sharper—and funnier—by his interventions; and then to the force of his dissents in both dimensions: written and oral. The writing was pointed, piercing, going to the logical core, but gaining in rhetorical force as it moved to its end. But then also in delivery: he was often angry and incredulous at the outcome, but the dissent was read with an anger subdued, read with a calm voice, perhaps the voice of a father seeking, with some disappointment and regret, to explain to the family gathered around that something had gone wrong.
“I read that dissent,” he told me one day, “because there were reporters there, and wouldn’t you think they would be interested in the First Amendment?” His colleagues had just sustained a law in Colorado aimed so evidently at one class of demonstrators—pro-lifers outside abortion clinics—and requiring them to stay more than eight feet away from people entering the clinic. That was Hill v. Colorado, in June 2000. Nino let Clarence Thomas take over reading the dissent in Stenberg v. Carhart, as their colleagues were willing to strike down a law in Nebraska that barred the grisly procedure known as “partial-birth abortion.” Nino hoped that the sympathies of the media might be recruited to support the “freedom of speech” even of people they found uncongenial. But the sober lesson breaking through was that the pro-lifers alone would be left out of the protections of speech that Nino had been seeking to expand.
When it came, though, to the force of dissents read aloud, nothing compares with the dissent he delivered in 2013, in the Windsor case, when the Court teed up the decision it would render two years later in proclaiming same-sex marriage as a constitutional right:
To defend traditional marriage [he wrote] is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. [To question the holding of the Court is to] “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
Maureen Scalia had urged her husband to read that dissent that morning, and I could see, as he read, its effect on her, as I could feel its effects on the rest of us. If Nino hadn’t read that dissent that morning, we couldn’t have walked upright out of the courtroom that day. He caught there what we would see played out, with a venomous, unbending force a year later, as the votaries of same-sex marriage would seek to bring down the hammer of the law on such luminaries as bakers and florists. These were ordinary people who would not confess the rightness of same-sex marriage and their own sinful wrongness in opposing it.
But the logic of the matter Nino saw at work as early as Romer v. Evans (1996), and yet even more sharply in Lawrence v. Texas (2003), when the Court struck down the (notably unenforced) law on sodomy in Texas. Justice Kennedy insisted that his decision that day entailed no further, “formal recognition” of the homosexual relation—i.e., marriage. To which Scalia famously said, “Do not believe it.” For the premises were firmly in place: Justice Kennedy had said that people in homosexual relations “seek autonomy” for themselves, just as people in heterosexual relations do. The two stood on the same moral plane. Kennedy had helped to plant the point that the laws may not cast an adverse judgment on the homosexual life. The laws that permit marriage only to couples of the opposite sex, and yet withhold that recognition from couples of the same sex, could be seen then as holding back from conferring this recognition on homosexual couples only because of an adverse moral judgment; a judgment now stamped as deeply wrong. As Scalia summed it up, “This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”
Nino remarked once that he had never had a course on logic, but he became the sharpest, most unrelenting logician on the Court. He managed with those arts to expose the vacuities that his colleagues were willing to treat as the “reasoning” commanding their judgments.
In the Lawrence case, Justice O’Connor sought to finesse the issue of same-sex marriage by insisting that “preserving the traditional institution of marriage” is a legitimate interest of the State. There were reasons to sustain marriage without casting any moral disapproval on homosexuals. Justice Scalia pointed out the trick of the eye engaged here.
‘Preserving the traditional institution of marriage’ is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest … could be recast in similarly euphemistic terms: ‘preserving the traditional sexual mores of our society.’ In the jurisprudence Justice O'Connor has seemingly created, judges can validate laws by characterizing them as ‘preserving the traditions of society’ (good); or invalidate them by characterizing them as ‘expressing moral disapproval’ (bad).
What he curiously screened out of his recognition was that this demanding application of logic was at the core of the “laws of reason and nature.” In our persistent jousting, he was persistently dismissive and derisive toward “natural law”—while I’d point out that he kept offering handsome examples of how a jurisprudence of natural law could be done. He associated “natural law” with some high flown “theory,” rather than finding it in a discipline of reasoned judgment, anchored in those “laws of reason.” In the notable case on assisted suicide in Oregon (Gonzales v. Oregon, 2006), Nino invoked the moral logic of the Hippocratic oath: that there was a rightful purpose in the medical art and the use of drugs; that the purpose was to secure the health of the patient, not to speed him to his death. To put it another way, death could not stand as a rival to the good of life. Justice Kennedy remarked that this venerable old view was one legitimate view of the matter. To which Scalia replied with an outrage barely muted: One of several legitimate views? No. No less than three times in the opinion Nino insisted that the interpretation of the Attorney General in applying the laws on “controlled substance”—the interpretation guided by the Hippocratic Oath—was the “most natural interpretation.”
Natural? As in natural reflexes? But Scalia surely knew that Janet Reno, the Attorney General in the Clinton Administration, had taken quite the opposite view—that nothing in the reigning statutes barred the State of Oregon from permitting drugs to be used by doctors for the purpose of procuring death for their patients. When Scalia said then that Attorney General Ashcroft’s interpretation was “the most natural” interpretation, he must have meant the most reasonable, the decision most in accord with the canons of reason. He was doing natural law as he had always done it—naturally, as a matter of common sense.
When my wife, Judy, had died suddenly a little over a year ago, Nino and Maureen joined me and my family in a Memorial Mass. I was in the first row of this small chapel and there was no kneeler there. As I knelt, I felt the pain of the floor. But just behind me Nino noticed. And he slipped a cushion under my knees. In a note yesterday, my friend David Forte recalled that moment, which he himself had noticed. Nino, he said, had been my protector at that moment, as he had been in his own way the protector of us all. And so many had barely noticed. No one can take his place in our hearts, and to ask, Who would take his place on the Court is to ask: who is there, by character and wit, who is worthy enough to take up his mission?
Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Founder and Director of the James Wilson Institute on Natural Rights & the American Founding.
