Scalia towered over John Marshall: Steven Calabresi

Luke Skywalker · Feb 14, 2016

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Supreme Court Justice Antonin Scalia in Washington in 2011.(Photo: Alex Wong, Getty Images)

I am saddened beyond words by the death of Justice Antonin Scalia — a man who I have known well for 34 years.*Justice Scalia was brilliant, funny, outspoken*and, in a very deep way, quite humble.*I will miss his company sorely, as I did when my own father died in 2003.
Antonin Scalia is one of only 112 Americans to have served on the U.S. Supreme Court, but he is the most important justice in American history — greater than former Chief Justice John Marshall himself.*Justice Scalia believed in following the law and in textualism. And he never misconstrued federal statutes to reach constitutional issues he wanted to decide the way Chief Justice Marshall did in famous cases like Marbury v. Madison and in Gibbons v. Ogden.*
Justice Scalia will be remembered for his commitment to the principle that judges should be guided in deciding cases by the original public meaning of the texts that they are interpreting.*He has totally reshaped the legal culture so that today there is much less use of legislative history and much more reliance on the constitutional text than there was prior to his elevation to the Supreme Court in 1986.* Even liberal justices like Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor*and Elena Kagan often joined Justice Scalia’s opinion or wrote textualist opinions that Justice Scalia could join.*Scalia has fundamentally and forever reshaped the way Americans will think about law.
Justice Scalia leaves behind a treatise on statutory interpretation as well as hundreds of opinions that reveal his original public meaning textualist approach.*Scalia’s work on originalism was picked up and used by important liberal originalist scholars like Akhil Amar and Jack Balkin at Yale Law School.*It is rare for a single Supreme Court justice to trigger such a scholarly response, but Justice Scalia did so.
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One of Justice Scalia’s most important opinions was a lone dissent, which he wrote in Morrison v. Olson, a 7 to 1 opinion, in which Scalia argued that the independent prosecutor law, which was on the books from 1978 to 1999 was both dangerous and unconstitutional.*His arguments carried the day, and by 1999 both the Democrats and the Republicans in Washington, D.C. had seen the wisdom of Scalia’s dissent. The independent counsel law was allowed to sunset out of existence.
Another important Scalia opinion came in District of Columbia v. Hellerwhere Justice Scalia held in a scholarly and historical opinion that the Second Amendment protects an individual*right to keep and bear arms for his or her own personal defense and not only if they are members of a state national guard unit.*This landmark ruling has had a huge effect in protecting the gun rights of law abiding citizens.
Justice Scalia was often on the conservative side of the Supreme Court, but he had a strong rule-of-law libertarian streak that occasionally caused him to side with the Supreme Court’s liberals.*He joined a five to four majority opinion that held that laws against flag burning were unconstitutional, and he recently ruled that the police cannot attach GPS tracking devices to people’s cars or bring drug-sniffing dogs to their front doors without getting a warrant first.*Justice Scalia did the right thing in these cases because he followed the law and not his political policy preferences.
In his nearly 30 years on the Supreme Court Justice Scalia never let his fame or power go to his head, and he engaged warmly and humorously with his colleagues, his law clerks, and his former clerks who came to see him once a year at his annual law clerks’ reunion.* When I clerked for him he used to regularly go jogging or play tennis with us*and he loved a good joke at his own expense.
Once when he was driving with one of his nine children across the country they stopped somewhere in Kansas at a roadside motel to spend the night.*He went up to the front desk and asked for a room. The desk clerk asked the justice his name. He answered "Scalia." *The desk clerk said he would have to spell that out. So the justice spelled out S-C-A-L-I-A.* “Oh," responded the clerk, "like the Supreme Court justice!”
Justice Scalia leaves a monumental legacy of books and opinions; colleagues on the Supreme and lower federal courts whose views he has affected; law clerks and students he*has taught;*and attendees from hundreds of speeches touched by*his infectious enthusiasm for the law as he understood it.
No future justice can hope to rival Justice Antonin Scalia, but we all can and should continue to learn from his legacy.
Steven G. Calabresi, the Clayton J. and Henry R. Barber Professor of Law at Northwestern University,*served as a law clerk to Justice Antonin Scalia of the United States Supreme Court, and*Robert H. Bork of the U.S. Court of Appeals.*Professor Calabresi co-founded The Federalist Society for Law & Public Policy Studies, where he is chairman of the board of directors.
In addition to its own editorials, USA TODAY publishes diverse opinions from outside writers, including our*Board of Contributors. To read more columns like this, go to the*Opinion front page.

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Scalia towered over John Marshall: Steven Calabresi

Luke Skywalker

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