Antonin Scalia, Deaths, SCOTUS, Supreme Court

Why Everyone Should Read A Scalia Opinion Today

There's no more fitting way to mark the passage of Antonin Scalia into history than reading his work, according to columnist Tamara Tabo.

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Righteous-IndignationYesterday, United States Supreme Court Justice Antonin Scalia was laid to rest. What happens now, to the Court, to the country, to the many people who loved him, to the people who loathed him?

There will be time for quarrels, speculations, prognostications. There will be time for politics. There will be time for pragmatics.

There always is.

But for now?

Read a Scalia opinion this weekend.

Re-read a favorite, if you’ve got one.

Finally work your way through one that you’ve known about, maybe even opined on, but, truth be told, you’ve never actually read all the way through. The one that made splashy headlines. The one assigned to you in Con Law on a day when you had too much else to read.

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If you think you and the Justice were in philosophical lockstep, if you can’t imagine disagreeing with him, pick a Scalia opinion that challenges you. Read that this weekend.

Or read the Scalia opinion that makes you angriest, that best epitomizes everything you detest and stand against in law and life and everything, if you’ve got one of those.

Yes, even if you regret that Antonin Scalia ever took the bench, remind yourself of why by reading one case this weekend. List the flaws in his reasoning. Articulate what you would have done differently and why. Make yourself state plainly and precisely and passionately how terribly you think Scalia f*cked up the law.

Just do it with one case. Do it in the tight space of one opinion, where there’s no room for generalizations or recitations of talking points or preemptive dismissals. For you or for him.

I can think of no more fitting way to mark the passage of Antonin Scalia into history than reading his work. This is true whether reading that one opinion reaffirms how much you honor Justice Scalia as an icon of unflagging, right-minded legal method, or it reminds you of why you are glad that there will never be another opinion beginning with “Scalia, J., delivered the opinion of the Court . . . . ”

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Antonin Scalia’s jurisprudence, if it does anything, welcomes debate. His opinions demand engagement.

This may be why Scalia’s dissents were often more powerful than his majorities. He was at his best when he was angry and he made you angry too — either joining his anger against his opposition, or angry at Scalia himself.

Justice Scalia was pugnacious. But he was always pugnacious with a point.

Scalia’s wit was sharp. But his analysis was sharper. If in law there is no greater sin than sloppiness, Scalia was a saint.

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Scalia may be the most well-known, most widely read jurist of the modern era. There are high school teachers and mechanical engineers and social workers and oncologists who have read Scalia’s work or who can tell you what he’s up to. Even if some of them might hate what he was up to.

I was one of them, minus the hate. I read Scalia years before going to law school, like I read Stephen Jay Gould without planning to be a paleontologist or Rem Koolhaas without aiming for a career in architecture or Milton Friedman without wanting to be an economist. I’d like to think that I didn’t just strive to know how to drop “punctuated equilibrium” or “constitutional originalism” into dinner party conversation, but it was probably at least that much.

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Several years ago, one of my best friends was preparing for a clerkship interview with Justice Scalia. Trying to make myself useful, I created a spreadsheet of important opinions authored by the Justice.

I sorted cases according to whether they were significant on their own or because of how well an opinion defined Scalia’s theoretical approach to a specific area of law. I sorted for majority opinions, concurrences, dissents with the support of other justices, dissents without.

I assembled the most important Scalia opinions on questions of equal protection, substantive due process, the Eighth Amendment. Habeas. Admin law. The Establishment Clause. The Confrontation Clause. Federalism. Separation of Powers. The Fourth Amendment. Free speech.

My friend didn’t need my spreadsheet or my help in order to get the job, which he did, indeed, get.

My spreadsheet was a fidgety effort to do something when I was otherwise powerless to help a person I loved get something he badly wanted. It kept my hands busy. It was no more effectual, I’m sure, than if I’d taken to obsessive-compulsively ironing his interview suit.

Sifting through decades of Scalia opinions took a long time. Longer even than I, an enthusiastic fan, expected.

For every District of Columbia v. Heller or Printz v. United States that lept straight to mind, there was a Mistretta v. United States, where Scalia was the lone dissenter who would have found that the federal Sentencing Commission Guidelines were unconstitutional. Opinions of the latter sort were no less powerful for having initially slipped my mind.

To be fair: for every Kyllo v. United States where my libertarian-conservative heart soared, there were, yes, also Scalia opinions like his concurrence in Gonzalez v. Raich, which made me want to stab the Justice squarely in the eye, then shove a copy of the Commerce Clause and the Court’s decision in Lopez in front of the other.

With all due respect to the Justice, of course.

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Justice Antonin Scalia (Photo by Chip Somodevilla/Getty)

Justice Antonin Scalia (Photo by Chip Somodevilla/Getty)

In the few days between the Justice’s death and his burial, much of the world has rushed to move beyond his life and death.

In some cases, the media may have moved too quickly for anyone’s good.

On February 13, Philip Bump wrote a piece for the Washington Post with the headline “Antonin Scalia is only the 3rd Supreme Court Justice to die on the bench in the last 63 years.” Bump goes on to write “The last, prior to Antonin Scalia, who died at some point Friday night or Saturday morning was Chief Justice William Rehnquist, who died in 2005. Prior to that, the last justice to die while on the bench was Fred Vinson, who died in 1953 — also while Chief Justice.”

This should come as a surprise to the folks at the Robert H. Jackson Center. Justice Robert Jackson died on October 9, 1954 while still serving on the Court. This might also come as a surprise to anyone fond of fact-checking.

By midweek, people were speculating about “Who paid for Antonin Scalia’s vacation to the luxury resort in Texas?”

By the time Justice Scalia’s body was carried into the Great Hall of the United States Supreme Court building to lie in repose, a great man’s life and work was at risk of being reduced to another icky Donald Trump spin line, intellectually impoverished but theatrically rich.

Which is greater: our federal budget deficit or our public attention deficit? Are we so dreadfully impatient that we can’t wait for public discussion of the social implications and political consequences of Antonin Scalia’s death until after we’ve done our best to honor Antonin Scalia’s life?

There will be time for that. There always is.

For now, for just a little while, let’s mark a man’s passage into history.

So, read a Scalia opinion this weekend.

While you’re at it, lift a glass. Maybe you’ll lift a glass to the fact that he is dead. Or, like me, read an opinion and lift a glass to the fact that, to our great good fortune, Antonin Scalia lived.

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit and ran the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.

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