I had the privilege of clerking for Justice Scalia for two years—his last year on the D.C. Circuit and his first year on the Supreme Court. In between the two clerkships, I helped to prepare Justice Scalia for his confirmation hearings, something that, in the pre-Bork era, was still pretty much a one-person job.
One of my favorite memories of my time with Justice Scalia is going running with him on the Washington Mall at the end of the day. If he was feeling energetic, we would run from Capitol Hill to the Lincoln Memorial and back; if he was feeling less energetic, we would turn around at a nearer landmark—the Washington Monument, if it was especially hot and humid, or if he had eaten an especially big or late lunch. (Needless to say, I always assured him that I felt exactly as energetic as he did.) It was a different time; only once did someone seem to recognize the Justice.
During our runs—and during the countless lunches and dinners that we shared over the next 30 years—we sometimes talked about the law, but mostly we talked about other things. We talked about our families, and about work, and about current events, and about our shared Catholic faith. In the last few years, Justice Scalia asked a lot of questions about my work as a federal trial judge—frequently asking about the impact of recent Supreme Court decisions. When I saw him in October, we talked about the work that Johnson v. United States was creating for us lower-court judges, as well as the controversy over mandatory-minimum sentences.
Reflecting on our conversations, I realize that one of the things that has been missing from many of the recent tributes to Justice Scalia is an appreciation of what a good judge he was. He exemplified many of the virtues to which all of us federal judges aspire, including fairness, dedication, honesty, and perspective.
Justice Scalia was absolutely fair. When he worked on a case, his sole focus was the legal issues. He did not care who the plaintiff was or who the defendant was. He never once mentioned any trait of any party—such as the party’s sex, race, ethnicity, age, religion, wealth, or sexual preference—unless that trait was relevant to one of the legal issues that he needed to decide.
Justice Scalia was also passionately committed to (as he liked to say) “getting it right.” He worked very hard. I recall one Friday night, in the first month or two of my clerkship. It was late, he was tired, and he was trying to get home to have dinner with his family. On his way out the door, he asked what I thought of a draft opinion that he had edited (rewritten, really) and given back to me an hour earlier. I said that I liked his changes, except that I did not think he had fairly described one of the appellant’s arguments, and thus the draft failed to respond to the argument that the appellant had actually made. He stopped, paused, sighed, put down his briefcase and suit coat, took the draft out of my hand, and headed back into his office. He called home, told his wife that he would miss dinner, and turned on his computer. Darkness fell as he worked to fix the problem.
Justice Scalia depended on his law clerks to help him “get it right.” We did not write bench memos for him. He did not see the point of bench memos, given that he read every word of every brief himself. Instead, before oral argument on a case, Justice Scalia would talk to the law clerk who was assigned the case, usually to see if the law clerk’s initial impressions were similar to the Justice’s. Before conference, all four clerks would gather in the Justice’s chambers, and the five of us would talk about each case on which the conference would be voting. The clerk assigned to a case would introduce it, and a spirited discussion would usually ensue. Sometimes that discussion would persuade the Justice to change his intended vote.
Justice Scalia also depended on his colleagues and the lawyers to help him “get it right.” He relished debating the merits of a case. He neither gave nor sought any quarter, but an argument was always about ideas, not people. When he wrote a majority opinion, he tried to respond to the main points made by the dissenting justices—and, if he could not come up with a satisfactory response, he changed his view. He expected the same of his colleagues. He was human; sometimes he got angry, and sometimes he used harsh language. But many of his most sharply worded dissents reflected frustration—not frustration at being outvoted, but frustration at the fact that the majority did not even try to respond to any of the points that he had made. Justice Scalia deeply believed that judging should be an exercise of reason, not of will.
Justice Scalia was the most principled person I ever met. His views were not popular among most members of the media, the legal academy, and the legal profession. He was subject to constant criticism, some of which was vicious and unfair. But Justice Scalia always did what he thought was right. I never saw a trace of concern about being popular.
Justice Scalia was utterly honest; he was the rare public figure who did not say something unless he meant it. And he was without pretension. I got a taste of this in the fall of 1983, when I traveled to Washington to interview for clerkships at the D.C. Circuit. Justice Scalia’s interview was the first of the day. At the end of our interview, Justice Scalia said to me: “Tell me what I should do. I really want you to clerk for me. But I’m afraid that if I make you an offer, you’ll think I’m desperate, and then you won’t want to clerk for me. So should I make you an offer or not?” Not many federal judges would say such a thing to a clerkship applicant.
Finally, Justice Scalia was able to keep his work—as important as it was—in perspective. His faith and his family always came first. He loved to spend time with friends. He did not care about your politics or your religion (which, for many Washingtonians, are the same thing); if he liked you, he liked you, and he would do anything for you. He loved to travel. He loved to give speeches and to talk to law students. He loved to eat good food and drink good wine and smoke good cigars and read good books and listen to good music (if you consider opera to be good music). And he loved to laugh. He especially loved to laugh.
He was one of a kind.
The Hon. Patrick J. Schiltz is a United States District Judge for the District of Minnesota and a founding faculty member of the University of St. Thomas School of Law, where he served as associate dean, interim dean and professor of law.