Posted on February 15, 2016
The first time I met Justice Antonin Scalia, who died on Saturday, was when he came to Princeton to give the Tanner Lecture in, I think, 1995. The lecture was on the inappropriateness (in Justice Scalia’s view) of judges applying their ordinary, common-law methods to the interpretation of our Constitution. Judges should approach our Constitution more like civil law judges approach a legislative text. Sometime during his visit (the details are hazy in my memory), Justice Scalia shared the stage with Ronald Dworkin. The two approached the theory of judging from very different perspectives. On the other hand, I don’t know if they were personal friends, but they had a wonderful and friendly back-and-forth on the stage. Justice Scalia told a story about an old English judge, whose name I have been struggling to recall: Dwight? Dwimmer? Anyway, he mused that it was such a strange name, beginning with the letters D and W. Where had he heard a name like that before? He turned, lunged across the stage, pointed at his colleague, and boomed, “DWORKIN!” I once described this scene to my law partner, Dan Dwyer, without thinking it through, leaving him to wonder, I’m sure, what I was trying to say.
There will be plenty of eulogies for Justice Scalia by those with a more detailed view of his career as a whole. Let’s remember him here by taking a look at his role in the Supreme Court’s handful of cases on international judicial assistance. He was in the majority in both the Volkswagen and Aerospatiale cases, though he wrote the opinion in neither. He was also in the majority in Intel, though there he wrote a short, characteristic concurrence criticizing the majority for examining the legislative history of § 1782 when the text of the statute itself was dispositive. He had a reputation for hostility to the use of foreign cases, even for their persuasive value, in construing the Constitution. But I don’t regard that as hostility to foreign or international law as such, but rather, just as a part of his originalist project: the Constitution means today what it meant when ratified, so contemporary foreign judicial opinions are as irrelevant as any of the other jiggery-pokery that his non-originalist colleagues on the bench would deploy.
Justice Scalia was one of a kind. His successor will no doubt be highly accomplished, and his or her views and methodological orientation may well be preferable to Justice Scalia’s. But he or she has very big shoes to fill.