The following is excerpted from a letter that Rachel Barkow, who clerked for the late Justice Antonin Scalia, sent to Senator Orrin Hatch in 2006, to mark his 20th year as a Supreme Court justice.
Although it is somewhat ironic that this tribute to Justice Scalia will be contained in pages of legislative history that he so often derides, I think even he will be convinced that, in this instance, the legislative history is authoritative. After all, if, as he has noted, the use of legislative history is “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends,” he will see many friends and admirers today. I proudly include myself in that group. Justice Scalia has been a valued mentor and serving as his law clerk was an honor I will always treasure.
All of the Justices play a significant role during their time on the Supreme Court by virtue of their votes in the important cases of the day. But most Justices fail to leave a lasting imprint on the law that goes beyond those votes. Justice Scalia’s jurisprudence, in contrast, will long outlast his time on the bench. For he has spent his twenty years on the Court not merely voting in important cases; he has been articulating his vision of the Court’s place in the constitutional order. Anyone interested in the Supreme Court–from legal scholars to litigants, politicians to pundits–must reckon with his impassioned and intelligent defenses of originalism and textualism. These methodologies have never had a more brilliant advocate on the bench, and generations of law students will wrestle with the arguments he has developed in his opinions. Whether you agree or disagree with Justice Scalia’s jurisprudence, there is no denying the brilliance or coherence of his vision of the Supreme Court.
The Justice is not merely a great intellect; he has the courage of his convictions.
It is important to note that this clarity has not come without costs to the Justice. It takes courage for a judge to stake out a clear position on what methodology he or she will follow in constitutional and statutory cases. For this transparency allows outside observers to assess the judge’s performance by a clear metric. It is so much easier for a judge to take each case as it comes without declaring an overarching method or approach. This flexibility allows the judge to change positions from case to case and vote his or her preferences without much constraint. Justice Scalia has not allowed himself that indulgence. Even if we cannot predict his vote in a given case, we know how to judge his performance, for he has told us in no uncertain terms the values he seeks to uphold and the approach he is committed to follow.
I will let history assess how each of the Justice’s votes has measured up to the standards he has set for himself. But two things are clear. First, there are countless examples that prove the Justice’s fealty to his methodological commitments. The Justice has not shied away from the consequences of his chosen methodologies, even when it has meant overturning an anti-flag burning law in Texas v. Johnson, 491 U.S. 397 (1989), or rejecting the government’s attempt to deprive an American citizen accused of terrorism of his procedural rights in Hamdi v. Rumsfeld. There are numerous other illustrations of his commitment, including a multitude of criminal law cases where the Justice has protected the rights of defendants. These cases demonstrate that the Justice is not merely a great intellect; he has the courage of his convictions.
Second, and more importantly, regardless of how Justice Scalia himself has performed under the standards he has set for himself, we must thank the Justice for articulating those standards brilliantly, cogently, and colorfully. His opinions are not only educational, they are engaging. They make us think about the role of the Court in our democracy, the nature of rights, and the balance of power in government. His opinions are also beautifully written; he is a master artisan of the craft of judicial opinion writing. Whether his opinions prompt howls of delight or screams of disgust, they are full of life, just like the Justice himself.
I hope we can look forward to at least twenty more years of Justice Scalia’s service. But even if he served not a day more, his place in history is both assured and well-deserved.
Posted: February 13, 2016