The University Bookman


Winter 2018

The Words of a Giant of the Law

book cover imageScalia Speaks: Reflections on Law, Faith, and Life Well Lived
by Antonin Scalia,
edited by Christopher J. Scalia and Edward Whelan.
Crown Forum, 2017.
Cloth, 420 pages, $30.

Stephen B. Presser

Antonin Scalia is the Winston Churchill of the American judiciary. He was a larger-than-life figure in the same way as was the great Prime Minister. Lately known as the Rock Star of One First Street (the address of the United States Supreme Court), Scalia has also been described at the nation’s first “celebrity justice.” He was Churchillian as well in his command of the English language, and just as Churchill mobilized the language and sent it out to war, so did Scalia enlist the language in his fidelity to jurisprudential truth. In this book of lovingly collected speeches, edited by one of Scalia’s sons and one of his law clerks, we get what might well be a much better sense of the Justice’s use of his mother tongue than one can find in his opinions.

Scalia will be remembered as the great champion of originalism (the belief that the Constitution should be understood in the manner it was understood by the framers and ratifiers) and textualism (the belief that statutes should be interpreted according to their “plain meaning.”) Both of those views make an appearance in this volume, but it is Scalia the man, rather than Scalia the judge, who is actually of greater interest here. The book’s subtitle reflects this, in that the three topics treated are “Reflections on Law, Faith, and Life Well-Lived.”

Scalia’s views on the law, on originalism and on textualism, are well-treated, and, indeed take up almost half the book, but those views will be familiar to anyone who has read the previous postings regarding Scalia that I have been privileged to make on this site. They needn’t further concern us, other than to acknowledge that the editors have done a splendid job giving us all we need to understand Scalia’s quite laudable abhorrence of the “living constitution,” the notion that the meaning of that great document should alter in order to accord with “the evolving standards of decency that mark the progress of a maturing society.” A measure of Scalia’s real ire at that vacuous phrase is the fact that he repeats it multiple times over the courses of the speeches here reproduced, so that the sensitive reader will come to loathe it as well. There are many hints here, too, of how much Scalia loved the law and lawyers, and how passionately he believed that by limiting the judicial role to the preservation of what had been decided by the popular branches and the people themselves, rather than engaging in judicial legislation, judges were actually engaged in the noble task of preserving popular sovereignty.

This stuff on the law is important, of course, and ultimately it may be for his jurisprudence that Scalia the judge and law professor will be remembered, but the real joy in this book is in better getting to know Scalia the man, and the two other speech topics, Faith and a Life Well-Lived, are those which give us something very close to a real and absorbing autobiography.

That Scalia’s firm Catholic faith was important to him was already fairly well known, but these speeches bring us a richness of appreciation of his religious commitment that one cannot glean from his opinions. Indeed, at several points in the book it’s made clear that Scalia scrupulously tried to avoid having his faith influence his legal decisions, and in this he probably succeeded, perhaps even too well.

In his speeches, though, and even in the few reproduced here, we can discern an exposition of religion, perhaps even an apologetic, that is nonsectarian and very reminiscent of C. S. Lewis’s Mere Christianity (Scalia was clearly an admirer, if not an acolyte of Lewis). In several speeches Scalia also makes clear his admiration for his great Catholic judicial predecessor, St. Thomas More, and More’s unsuccessful struggles, which resulted in martyrdom, to force Henry VIII to conform to the dictates of the law and religion.

Similarly striking is Scalia’s appreciation for other faiths, particularly Judaism, which he demonstrates not only by a puckish sense of Yiddish humor (he quotes, for example, Irving Kristol’s observation “in reference to the election of a Jewish mayor of Dublin, ‘Only in America!’”) but also by the fact, noted by the editors, that Scalia was the first Justice to use “chutzpah” in an opinion. We learn that Scalia quoted repeatedly from Washington’s famous letter to the Hebrew Congregation of Newport, emphasizing that this founder, whom Scalia appears to admire more than any other, had a special veneration for the people from whom Jesus sprung.

In our militantly secular age it is bracing to encounter as well repeated instances of Scalia’s belief in a hereafter, even in the classic doctrines of purgatory, and of the promise that beloved friends and family will once again be with us in heaven. In a manner strikingly similar to Blackstone, or Washington, Scalia’s speeches reveal that he understood that law is impossible without morality, and morality is impossible without religion. As Scalia has pointed out in some of his more striking dissents, this was a vital part of the American tradition for centuries, and only lately (and in Scalia’s view, wrongly) repudiated.

It is, however, the light-hearted parts of this book that are the most endearing, and maybe even the most reassuring. We meet Scalia the committed youthful stickball aficionado, and the mature hunter of wild turkeys. But it is Scalia the friend and the wit who is most touching. The book begins with a foreword from Justice Ruth Bader Ginsburg, who was well-known as Scalia’s closest friend on the Court even though their Constitutional views could not have been further apart. Justice Ginsburg shares with us what she calls Scalia’s “rare talent … for making even the most sober judge smile,” as she confesses that “When we sat side by side on the D.C. Circuit, I occasionally pinched myself hard to avoid uncontrollable laughter in response to one of his quips.” Also reproduced in the book are some comments Scalia made at a “roast” in honor of the woman now known as the notorious RBG, when he reported that while Justice Ginsburg was thought to be “too serious a person” to roast, her husband had told him “that on alternate Tuesdays Ruth goes into the living room after dinner and just sits there giggling until bedtime.” It is unlikely that you will encounter many books about judges that will actually make you laugh until you cry, but this one just might. It did me.

Scalia was often scorned in the sophisticated reaches of the legal academy for his simple, basic, and traditional approach to the Constitution, to the law, and to life. The same, of course, could be said of Churchill (or Washington for that matter). The reader of this deservedly bestselling book will learn how silly and misplaced that scorn was.  

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University School of Law, and is the author of Law Professors: Three Centuries of Shaping American Law (West Academic, 2017), recently reviewed in these pages.

Posted: January 14, 2018

Did you see this one?

Despotism Justified
Mattei Radu
Volume 46, Number 4 (Winter 2008)

A “conservative character [is] suspicious of doctrinaire alteration, respectful toward history, preferring variety over uniformity, acknowledging a moral order composed of human persons, not of mere political and economic atoms subservient to the state.”

Russell Kirk, A Program for Conservatives, 1954


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