Supreme Court Justice Antonin Scalia’s relationships—both personal and professional—revealed the character of a man who stood by his beliefs, all while inviting dissent and discussion. He celebrated argument and opinion as a staunch constitutional originalist, standing by what he considered a sacred and unchangeable document. “The constitution not meant to facilitate change,” Scalia once said in a visit to the historic Oxford Union in England. “It is meant to impede change. To make it difficult to change.” That resistance, Scalia argued, provided more democratic results when change did, inevitably come. “I’m not saying no progress,” Scalia said in a 2008 interview with 60 Minutes. “I’m saying we should progress democratically.”
Scalia’s insistence on democracy earned him respect with his colleagues, his admirers, and even his detractors. In a statement in the wake of Scalia’s death, notoriously liberal-leaning Supreme Court Justice Ruth Bader Ginsberg wrote, “He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh,” Ginsburg said of her close —if unlikely—friend.
In his brief presidential run this year, Harvard Law School professor Lawrence Lessig campaigned to take the money out of politics. In 2010, Scalia helped pass Citizens United, describing unlimited corporate campaign spending is something “we should celebrate rather than condemn.”
Yet Lessig, who worked for Scalia as a Law Clerk in 1990, remembers the Supreme Court Justice with warmth and respect. “He hired me as what he used to call his ‘token liberal clerk,’” Lessig said in an interview with Boston Public Radio. “He encouraged that kind of argument inside the chamber. Sometimes he resisted it, he wasn’t always pleasant when one disagreed with him, but that was my job, and so that’s what I was there to do.”
According to Lessig, one of the most striking things about Scalia is that he somehow could not see his own influence. “He never understood that he had won,” Lessig said. “He came to the Supreme Court—he came to being a judge at a time, for example, when judges routinely used legislative history to decide the meaning of statutes. This was something he thought was absolutely inappropriate, and he waged a war against legislative history. The court has radically changed the way in which it uses legislative history.”
Until the very end, Lessig said Scalia would continue to write his dissents with the same frustration and fervor as he always had, even if it seemed that legislative history had merely slipped into the decision. “He had the same kind of depressed, outraged reaction…like this was a terrible thing…never pausing,” Lessig said. “I once asked him about this, pausing to recognize how radically the world had changed because of what he had done. I don’t know whether it was kind of a deep humility… I don’t know what it was, but this was a funny thing about who he was.”
According to Lessig, Scalia’s resistance to a more flexible interpretation, or a “living constitution,” came from a fear of giving judges too much power. “He recognized that the constitution is incredibly difficult to amend, and he thought that was a flaw in the constitution,” Lessig said. “It shouldn’t be that difficult to amend it. But what he was most concerned about was a world where it was unelected judges who would be imposing their will on the political process, as opposed to elected representatives.”
Those who oppose Scalia’s rigid constitutional standard argue that the original document had no place for many oppressed groups, including women, African-Americans, and homosexuals. Lessig agrees that this is a hard case to account for, as an originalist, particularly for women. “African-Americans, at least, have the benefit of amendments that were explicitly passed either explicitly mentioning them, like in the 15th amendment which extended the right to vote or said you couldn’t discriminate on the basis of race, or the 14th amendment, which was plainly enacted because of the concerns about equal status on the basis of race,” Lessig said. “Women don’t have that, except for the 19th amendment which makes it so that they could vote, but the point is, beyond that, it’s a hard problem, and even the most important decision of Justice Ginsberg’s defining the rights of women in our constitution, Scalia gives a very strong dissent, basically saying, it’s not for us to be doing this, it’s for the political process.”
That political process has been hindered, Lessig said, because of flaws in Congress. “It’s the same thing with the recent fights about presidential authority,” Lessig said. “[President Obama] is stepping up and using executive power to do all sorts of things, because congress won’t do it itself. So many of the complaints, I think, of an expanse of the judiciary and an expanse of presidential power would be resolved if we ever got back to fixing the corrupted institution of the core of our government, Congress. Because we don’t people just try to find a way to get stuff done, and that’s either the courts or the president.”
President Obama has vowed to pick a Supreme Court nominee shortly, and there’s a long list of candidates, including Lessig himself. “That’s a crazy idea,” Lessig said. “There are so many wonderful people to be considered, and I think a president should be thinking not just about the amazing list of wonderful people he could consider, and I think that’s a long list, but also who creates the greatest political burden on the other side.”
So who would that be, according to Lessig?
“I think the category of that person is a highly qualified Hispanic justice, because the Republicans in this election are going to be very eager not to further alienate that population in America,” Lessig said. “There are a number of them, but I think of Mariano-Florentino Cuéllar, a supreme court justice in California. He’s like 43 years old, as young as [Clarence] Thomas was when Thomas was appointed to the court… I think he’s fantastic, and not just because of the demographics, but he’s also incredibly astute when it comes to technology matters. He was a professor at Stanford, I knew him back then… he’s been doing a lot of work about the internet, and how technology intersects with the law, and he would be a really powerful new generation person on that court, who actually understood something about the most important platform for communicating that we’ve got.”
Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School and an expert in constitutional law who worked as a Law Clerk for Supreme Court Justice Antonin Scalia from 1990-1991. To hear more from his interview with Boston Public Radio, click on the audio link above.