Dahlia Lithwick remembers the late Supreme Court Justice Antonin Scalia and his legacy on Slate’s Amicus.

How Should We Remember Antonin Scalia?  

How Should We Remember Antonin Scalia?  

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Feb. 25 2016 11:06 AM

Amicus Remembers Antonin Scalia 

Amid the media battle over his Supreme Court seat and legacy, Dahlia Lithwick takes a moment to reflect on the person behind the famous persona.

scalia art.
Supreme Court Justice Antonin Scalia at the annual Columbus Day Parade in New York City in 2005.

Photo illustration by Sofya Levina. Photo by Spencer Platt/Getty Images.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 38, in which Slate’s Dahlia Lithwick discusses Justice Scalia’s life as a legal thinker, colleague, and mentor.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

The fight over Antonin Scalia’s Supreme Court seat and how his legal legacy will be remembered has been discussed constantly since Scalia’s death on Feb. 13. But on this episode of Amicus, Dahlia takes a closer look into remembering the larger-than-life figure.

This week, Dahlia is joined by Akhil Reed Amar, Sterling professor of law and political science at Yale University, and one of Scalia’s former clerks, Rachel Barkow, who is now the Segal family professor of regulatory law and policy at NYU Law School and the director of NYU’s Center on the Administration of Criminal Law.

To learn more about Amicus, click here.

This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Hello, and welcome to Amicus, Slate’s Supreme Court podcast. I’m Dahlia Lithwick, and I cover the court for Slate. On the last regular episode of this show, you may recall that we talked about how little play the Supreme Court was getting in this presidential election despite how really important it is. Well, what a difference a couple of weeks can make.

The surprise death just last weekend of Associate Justice Antonin Scalia has really sent shockwaves through the country, not only reshaping the contours of this election but potentially shifting the ideological balance of the court and triggering a constitutional game of chicken between President Obama and the Republican-controlled Senate. Now, however this all plays out, you can be sure that we’re at the very beginning of a democratic and constitutional soap opera that will represent the perfect dramatic capstone to Justice Scalia’s larger-than-life career and persona.

You have by now surely heard many very, very smart people teasing out the possibilities for what happens next in what’s sure to be a very long process of replacing Justice Scalia on the bench. You’ve also probably heard a lot of partisan bickering about who he was, what his legacy is, and how you should feel the way I feel about Justice Scalia all the time. We thought on today’s episode of Amicus we’d stay away from some of that and stick to the facts.

So, we’re going to set aside the political gamesmanship. We’re even going to set aside the ideological yelling, and we’re going to spend a little time instead reflecting on who Antonin Scalia really was, both as a legal thinker and as a colleague and mentor. Later on in the show, we’re going to be joined by one of his former clerks to talk about what it was like to work in his chambers. But first, we’re going to dig down into Justice Scalia’s intellectual and doctrinal legacy at the court.

People have been throwing around words like originalism, and textualism, and strict construction all week long. But what do they mean? Joining us from his New Haven office to help think through some of these big questions is one of the people who has profoundly shaped my own view of the law and that of so many others. Akhil Reed Amar, Sterling professor of law and political science at Yale University. He is much cited in Supreme Court opinions and the author of multiple important books, including most recently The Law of the Land: A Grand Tour of Our Constitutional Republic.

Akhil Amar, it is such a pleasure to have you on the show. Welcome to Amicus.

Akhil Reed Amar: Thanks, Dahlia. It’s always great to be with you. And Slate, by the way, has just done heroic work over the years, and I’ve been so grateful to work with Slate in all sorts of ways.

Lithwick: Well, I want to start by asking you, Akhil, at the most visceral level, what is your personal reaction? I mean, it’s about a week into the news of the justice’s death. And I don’t know if you’re like me, finding it still hard to believe, but what are you sort of thinking and feeling right now about the loss of this really landmark figure?

Amar: It’s the end of an era in a couple of ways, personally and structurally. On the personal level, I think you used just the right phrase when you said soap opera. Because Justice Scalia actually was quite literally operatic. He was an opera lover. He had a larger-than-life personality. He had an operatic personality.

I actually, in a piece, believe it or not, in Slate last summer, referred to him as an operatic diva. And his personality shone through on the pages of U.S. Reports, which collects Supreme Court opinions of both majorities and other opinions, including dissenting opinions. It was there in open court. I’m sure you saw that way more than I did. He published books for general audience sharing. His views, collections of his writings.

He was on the rubber chicken circuit, so to speak, giving all sorts of speeches in many venues, projecting that personality. So, we may not see his likes again. So, that’s one thing, the end of an era of a larger-than-life figure. But then the other thing that I tend to think about, because I often look at things structurally, is how it’s the end of a judicial era perhaps.

Because for my entire adult lifetime, Republican appointees have had a majority, a lock, a monopoly really, on Supreme Court control. Republican appointees in control of the United States Supreme Court since January of 1972. So, 44 years straight. And now with Justice Scalia’s passing, it might not be so, depending on how that vacancy is filled. And now you can begin to understand just how intense the reaction has been, especially on the Republican side of the aisle.

Seeing that and seeing the possibility even that Democrats could be in charge of the Supreme Court, Democrat appointees, not just for the next year or two but possibly for the next era. That would be really big news.

Lithwick: I want to talk if we can, because I’ve noticed this week in listening to and participating in the conversation about Scalia’s legacy that people use words as though they’re completely fungible.

And we’re not crisp when we talk about the differences between, say, textualism, which Justice Scalia, I think, believed in very strongly, which means looking at the original public meaning of the text of a statute of the Constitution. And that’s different from originalism, which means looking at the original intent of the framers of that document. And those things are different in turn from strict constructionism, which means kind of narrowly construing the meaning of words.

That’s different from looking at the dictionary, which is also something that Scalia wanted to do. And all of that is not necessarily the same thing as judicial humility and constraint, which he also talked about. So, can you help us parse what Scalia was and he wasn’t? And I know that some of this is really in the weeds. But can you help our listeners understand where Scalia located himself, or where you would locate him, on this spectrum of how he looked at the text and history of the Constitution and the original public meaning?

This all is very, very confusing, I think, to people who just hear words slapped around.

Amar: It is confusing. And it’s all the more confusing because some of these parts don’t quite cohere. And indeed, they might be at cross purposes. So, let’s actually separate out three or four different ideas in constitutional interpretation. One, there’s this idea of judicial restraint and judicial humility.

OK, that’s an idea. There’s a second idea, which is paying attention to the text of the Constitution. And there’s this third idea, paying attention to the historical background and understanding what the framers and ratifiers of a particular constitutional provision or a particular constitutional amendment were trying to do, what they had in mind, what they understood their words as meaning at the time they adopted a constitutional provision. OK, those are interesting ideas. The text, the original purpose and public meaning, and judicial restraint or judicial humility.

Here’s why they’re sometimes at cross purposes. Well, judicial humility might suggest not lightly overturning what a legislature has done. But if the text of the Constitution is really clear, and the history, and what the legislature has done is unconstitutional, well then, you either can be restrained and humble and deferential to legislatures, or you can enforce what the Constitution really says in its text and really was understood as meaning to its ratifiers.

But you can’t necessarily always do all of those things, because they’re in some tension. Let me bring in another dimension. Part of judicial humility is respect for precedent. Well, if you think though the precedents are wrong, if you think the precedents are inconsistent with the text of the Constitution, or with the original public meaning as a matter of history, you can follow the precedents, you can follow the text, but maybe you can’t do both at the same time.

And so, there were these tensions in Justice Scalia’s philosophy that he didn’t fully work out. In fact, he was pretty willing to overturn precedents, was pretty willing to invalidate what legislatures have done. He did so often in the name of text and history of the Constitution. But even there, critics might say several of his claims over the years weren’t very plausible as a matter of text and original intent.

And if you believe a lot in the original public meaning or the original intent of a Constitutional provision, here’s one other thing. You need to study that in great detail. You need to be a historian of sorts. And justices and judges aren’t historians. They’re not trained that way. And so, it’s a very demanding thing to say that a judge or justice really needs to be able to channel the framers or to channel the Reconstruction generation, because that requires a lot of historical work. And I’m not sure that Justice Scalia was always up to the challenge.

Lithwick: So, to be completely clear, I think it’s important for listeners to understand that actually, textualism as he saw it was different from what we think of as originalism, and that strict construction doesn’t really mean much of anything, and that judicial humility isn’t always the exact same thing as declining to overturn precedent.

Amar: And having said all of that—so, let’s just take maybe the most famous case of the 20th century, Brown v. Board of Education.

Well, if you look at the text of the Constitution that involves segregation, Jim Crow, if you look at the text, the text really says equal. And if you take equal seriously, schools in the South really weren’t equal. And so, you have to say that’s unconstitutional. On the other hand, the precedent is Plessy v. Ferguson, from the late 19th century, which says segregation is OK. You can follow Plessy and the precedent. You can take the text seriously.

It says equal. But maybe you can’t do both. Further complicating the matter is, what was the original vision of the framers of the 14th Amendment? What was their view about segregation? And that’s a little bit complicated. So, sometimes you’re going to have to choose between text on the one hand and, say, precedent on the other. Now, I’ll give you a case where, in my view, Justice Scalia got it wrong and he was activist in many different dimensions. So, sometimes you have to choose.

But in Bush v. Gore, I think he got it wrong multiply. And I think it was even worse because, speaking of humility, he never admitted that in life. Whenever anyone asked him about it afterwards, he said, “Get over it,” in a way that Justice O’Connor didn’t actually, didn’t say that. I think she may have come to think that that was a mistake. Some of the other justices actually distanced themselves from Bush v. Gore, and Justice Scalia tended to double down on it. That was his personality, to double down on things. But in Bush v. Gore, there really weren’t any precedents supporting what the court did, which is decide a presidential election.

And they sort of intruded into a domain that was really Congress’. And the text of the Constitution really didn’t support this intervention. And the history and original intent of various constitutional provisions was really mangled in the process. So, I would say that was an activist decision on many different dimensions, and it was a partisan decision. And Justice Scalia believed that law should be different than politics.

He believed that deeply. And yet, alas, I think sometimes he failed to meet his own very high, demanding principled test of law being completely different than politics.

Lithwick: Akhil, I would be remiss if I didn’t bring Scalia’s voice into this conversation, simply because nobody did Scalia better than Scalia.

Amar: Exactly.

Lithwick: And I want to listen to a conversation he had in 2006 with Justice Breyer.

And here, he is explaining why his form of originalism or textualism is so much better than what he would probably describe as Breyer’s loosey-goosey hippie alternative. Let’s have a listen, and then I would love you to react.

Justice Scalia: Look, and I agree that you should have different people with different—who reach different results. But one would think that after 200 years, there would be some consensus on what we think we’re doing when we interpret the Constitution.

You know, I mean, these are wildly divergent views. Are we taking broad concepts such as equal protection and due process and asking, what should these concepts mean today? That’s one view. Or on the other hand, are we saying, what did these concepts mean when they were adopted? Now, as for the difficulty of figuring that out, the historical problem.

Yes, there is—I’m not pretending that doing it by text and the original meaning of that text is perfect, that it’s going to solve every problem. But it solves an awful lot of problems, especially the most controversial ones. It doesn’t take a whole lot of history to figure out that nobody thought that the Bill of Rights stopped a state from prohibiting abortion. Nobody thought that the Bill of Rights prohibited a state from criminalizing sodomy.

Nobody thought that the Bill of Rights [stopped a state] from prohibiting assisted suicide. So many of the most controversial questions, it’s a piece of cake to decide it.

Lithwick: So, piece of cake, Akhil. It’s so easy. That was vintage Scalia, right? A kid could do it. Thoughts about his version of his own approach?

Amar: Well, it’s wonderful that we get to hear his own voice. So, thank you for that.

He himself admitted that sometimes, actually, that he would side with precedent if the precedent were very well-settled, even though the text and the history suggested otherwise. So, I’ll give you an example where I’m way to the right of Justice Scalia, believe it or not. No one at the time of the founding or Reconstruction thought there was an exclusionary rule, where evidence that’s very reliable, that proves someone is guilty of something, the smoking gun, should be tossed out because the evidence was acquired in an illegal search or seizure.

And so, I said, gee, following Scalia’s principles, we should get rid of the exclusionary rule. The only problem is Justice Scalia never seemed to think so. Fine. But never told me why. Never told me why the Scalia who said all of those things about sodomy laws and abortion and all the rest didn’t say the same thing about the exclusionary rule. And when he did talk about it at all he said, well, some things are settled as a matter of precedent.

Well, some of these other things are settled as a matter of precedent too. And when do you go with precedent, and when do you go with text or original intent? That’s Brown v. Plessy. Let’s talk about women’s rights. Justice Scalia sounded, in a case called VMI, a little bit like the Justice Scalia that we heard in that clip. Because he said, well, the framers of the 14th Amendment really—it wasn’t about women’s rights. VMI was the case about whether the Virginia Military Institute could have a much better education system for men than for women.

And Justice Scalia, sounding very traditionalist, basically said, well, we have this tradition of VMI for men for a long time. So, but if you’re a traditionalist, does that mean that women’s rights really are not front and center? Now, the text of the Constitution says equal. It doesn’t say race. The history was maybe about race, but I believe it was about actually women too. And Justice Scalia never engaged that history, because he actually wasn’t a historian.

How do we factor in the later 19th Amendment and second-generation feminism? And how do we factor in the fact that today women are saying, this isn’t equal, marriage isn’t equal, in the 1970s, even if women weren’t saying that in the 1870s. So, sometimes Justice Scalia, I think, did suggest that it was a little easier than it turned out being. And sometimes, Justice Scalia didn’t quite reconcile all the tensions in his own thinking.

Lithwick: I wonder if you would talk a little bit about—you know, you’ve said it implicitly. But you know, Scalia very explicitly said, look, I’m a faint-hearted originalist. That was his famous phrasing. And he would distinguish himself from Clarence Thomas, who he would say, you know, is much more of an originalist than I am. In a 1997 speech, I think he said, I’m an originalist, I am a textualist. I am not a nut.

And I wonder if you could talk a little bit, Akhil, about the space he would put between himself, his own version of originalism, and Justice Thomas.

Amar: So, when you say you’re not a nut, what happens to this idea that you’re just following the text and the rules? Because if you’re actually going to say, gee, sometimes the text is nutty and doesn’t make sense, that’s OK. But now you’re starting to sound a lot like the very Justice Breyer whom you’re criticizing when he talks about pragmatism and common sense and judgment.

I’m glad that we’re bringing Justice Thomas into the conversation, because I don’t think Justice Thomas gets enough credit for his very distinctive vision, a very interesting, powerful vision. The one other person I think we just can’t not bring into the conversation, if we are talking seriously about textualism and originalism and judicial restraint—I’d want us to remember the great Justice Hugo Black.

Franklin Roosevelt’s first appointee to the court in the late 1930s. He always carried a copy of the Constitution around with him. And he believed in text, and he believed in history and original intent. And he was a liberal lion. He was in some ways the heart and soul of the Warren Court. He, even before Earl Warren and William Brennan, these great liberals, joined the court, Hugo Black often in dissent and saying, criminal defendants should have appointed counsel, indigent criminal defendants, which will become Gideon v. Wainwright.

He said, actually, there shouldn’t be malapportionment. There should be one person, one vote. The Bill of Rights should be applicable against states as well as the federal government. After the 14th Amendment, we should get rid of organized prayer in the public schools and have religious equality. Equal means equal, and that means we shouldn’t have apartheid. Hugo Black is saying all these things actually as a liberal, but also as a textualist and an originalist.

So, I wouldn’t want our listeners to think that originalism and textualism are games that only conservatives can play. They’re actually not. They’re games that liberals can play and have played. And there’s no one who played the game better than Hugo Black. And he sounded sometimes like Justice Scalia. And critics said that’s a little too simplistic. You know, it’s not quite as easy as that. But isn’t it interesting that we have Scalia on the right, and Thomas on the right, but we also have Hugo Black on the left sounding sometimes very similar.

Lithwick: Well, I actually know another originalist who’s a progressive. And his name is Akhil Amar. And he has written—

Amar: Guilty as charged.

Lithwick: He has written—in fact, written in Slate an article that really changed the way I thought about originalism, saying there is a real progressive case for adopting originalism. And I think since you’re written that, and since you’ve thought about it, I think a lot of progressives have come round to that view.

But I want to flag for you the cartoon version. Here’s the New Yorker cartoon version of where originalism gets you. And I remember sitting at oral argument watching Justices Scalia and Alito in the violent video games case. Right? You know where I’m going with this. Where Justice Alito at some point turned to Justice Scalia and just snarked. And there’s no, I think word for it other than snarked.

Justice Alito: Well, I think what Justice Scalia wants to know is what James Madison thought about video games.

Did he enjoy them?

Lithwick: And you remember that moment. And you probably remember the other New Yorker cartoon originalist moment, which is Justice Scalia again. Now he’s talking about GPS devices and whether putting a GPS device on a car without a warrant violates the Fourth Amendment. And again, he’s talking about tiny constables. You know, what the framers would imagine, the little constable in the carriage, and that’s the closest analogue.

So, I want you to do your best—your best attempt to buffer originalism from those kinds of moments when it looks as though this entire enterprise of asking the framers what they would think of a world of GPSs and violent games and thermal imaging to see if marijuana is being grown in a home. All of these modern developments that the framers could not have anticipated, Akhil.

And here is Justice Scalia putting a constable in the cart and saying it’s a GPS.

Amar: At his worst, he had a certain brittleness and narrowness and asked the question, what would the framers have thought about this particular fact pattern? But at his best, he actually tried to think about the underlying principles that the framers actually understood and tries to apply them in light of new technology.

Since you mentioned thermal imaging, Justice Scalia wrote the majority opinion in a case called Kyllo, in which he said that if the government points a kind of high tech raygun at a house that can be used to actually see shadowy figures of human beings walking through the house, he says the Fourth Amendment applies to that. That’s a search, even though there’s no physical trespass there. Even though in the framers’ world maybe that wasn’t covered by the Fourth Amendment.

But he understood that the Fourth Amendment—in that case, it was a very great Scalia opinion, a very supple one, in which he said, actually, here’s what the Fourth Amendment is about. It’s about the privacy of the home. And he had a really interesting observation. He said, with this thermal raygun, the government can tell when the—he was very traditionalist in some ways. When the lady of the house takes her bath, or takes her sauna. But actually, he was channeling the framers in saying that, because the framers actually really did care about privacy in the home.

The word house appears in the Third Amendment, and in the Fourth Amendment. And believe it or not, in this case called Griswold v. Connecticut, which Justice Scalia may have had some questions about, that word house is prominently mentioned by both Justice Harlan and Justice Douglas as saying, look, beyond the rules of these amendments, there are principles. Why are houses mentioned apart from every other building in both the Third and Fourth Amendment?

Because we care about home life. We care about family life. We care about privacy. Now, Justice Scalia understood that in Kyllo. He was somewhat dismissive when other people said, well, you know what people do in homes? They have loving relationships with their loved ones. They actually engage in erotic activities. There’s a case called Stanley v. Georgia, which is about, in effect, erotica in the home. Today, we might call that the Internet or something like that. But there are other cases like Lawrence v. Texas.

He was derisive, but that was about two people in a loving relationship in the house, in the home. So, at his best, he actually understood that you need to go beyond the narrow words to understand the larger principles and apply them in a world of changed technology. He really did get that in a big way in Kyllo. He did not say, oh, the First Amendment only applies to printing presses at the founding and it doesn’t apply to television or radio or the Internet. He didn’t say that.

He didn’t say, in the Second Amendment context, that the only kind of weapon you could have was a musket or a single shot Derringer, because those were the only weapons that existed in 1787. So, at his best actually, he was more supple than that. But once you do that, then you lose the ability to mock the Breyers of the world, the John Marshall Harlans in cases like Griswold, who are doing what you’re doing, but maybe just pushing it one step more. And now, when you stop doing that, that’s the question of judgment.

And textualism at its worst suggests that there’s not really judgment going on.

Lithwick: I suspect that a lot of people listening to us right now, Akhil, are saying, hey, I could be an originalist too.

Amar: You could. Do it.

Lithwick: Do it. Here, sign up here. Go to amicus.com. But I think they’re probably feeling, as a lot of the Scalia critiques that I’m reading this week, that at the end of the day, originalism inexorably is going to drive you to much more conservative than progressive outcomes.

And that in the end of the day, what Scalia called originalism just reinforced an 18th century worldview that more often than not is not going to help women and minorities and other constituencies that Scalia didn’t always really see in full. I think you’ve answered it in part by saying that’s not true, that the Constitution isn’t fundamentally a conservative document.

But what do you do with the critiques of Scalia that are coming out today that are suggesting that, look, he says he was guided by originalism, but that’s just because it got him where he wanted to go politically?

Amar: My biggest critique of Justice Scalia is that he tended too often to stop at the founding. There’s this very snarky line. I don’t think it’s true at all. But that there’s some pro-life people who think life begins at conception and ends at birth or something. They don’t care about protecting life afterwards. I don’t think that’s true.

But originalism shouldn’t be something that begins and ends at the founding. And I think my biggest critique is that Justice Scalia didn’t fully take onboard the original intent and purpose and public meaning and vision behind the Reconstruction, which is much more nationalist and much more egalitarian, of the 20th century amendments that will give us a progressive income tax, women’s suffrage, direct election of senators, an end to poll tax disenfranchisement.

And one of the reasons that Justice Scalia, I think, didn’t fully attend to that—remember, to do originalism right, you need to know a lot of history, not just founding history, not just 18th century, but 19th and 20th century history. And that’s a lot of work. And here is the hardest issue, actually. If we’re really being serious originalists, how much do we need to reinterpret earlier texts because of later amendments? Let’s take who’s eligible to be president. And no, I’m not going to talk about Ted Cruz.

But if you read Article 2, it says, he, him, his. And at the founding, they’re talking about presidents and whether they’re going to be like kings. And no one’s asking whether the president is going to be like a queen. And they know from queens. Virginia is named after one queen, Queen Elizabeth, the virgin queen. William and Mary is named after another queen. So, they know about queens and they never ask whether presidents are going to be like queens. They’re going to be—they ask whether they’re going to be like kings. So, does that mean if today some state, North Carolina, passed a law saying, no woman can appear on our presidential ballot, as a way of hurting, let’s say, Hillary Clinton, if she were the nominee.

If you just look at the founding to say, well, that’s not unconstitutional. The framers thought that people were only going to be men. They say he, him, his. But that can’t be right. And it can’t be right because there is later amendments, including a 19th Amendment that’s all about women’s equal political participation. But it didn’t rewrite the words of Article 2. The words he, him, his are still there. You’ll still see the three-fifths.

We didn’t rewrite the original Constitution. And now this is the real originalist challenge that Justice Scalia never really confronted. Because you need to be more than a literalist to do this. How much do we have to reinterpret these old founding practices in light of the later amendments? Amendments that made amends, that made our system way more liberal and free and equal. And that also added a lot more federal power. The 13th, 14th, and 15th amendments all end with the words, Congress shall have power, and so do other later amendments.

Whereas the First Amendment begins with the words, Congress shall make no law, of a certain sort. So, the biggest critique of Justice Scalia might be he tended to focus too much on the founding and not enough on the later amendments, which he needed to take seriously because they’re part of the Constitution also. And the challenge to our readers is to not stop in the 18th century, to see how the Reconstruction generation gave us a new birth of freedom, how women’s suffrage movement doubled the franchise, and how the people that were doing that weren’t just white men.

They were, you know, blacks alongside whites, and women alongside men, and how that story continues today. And it’s a challenge because to really do originalism right, you need to think not just about the 18th century, but the 19th and the 20th and the 21st. And that’s a hard thing to do. And so, it’s not a unique knock on Justice Scalia that he didn’t do it all. And maybe it’s an amazing tribute to him that we are holding him to such a high standard and saying, here is where he sort of failed it.

But that’s because he put that high standard before our eyes, because he really did try to be a principled justice, even if, you know, he may have failed just as we all fail sometimes.

Lithwick: Akhil Reed Amar is the Sterling professor of law and political science and Yale University. He’s the author of many books, including most recently The Law of the Land: A Grand Tour of Our Constitutional Republic. Akhil, thank you so very much for joining us today.

It was just a pleasure and an honor to talk to you. And thank you for being here.

Amar: Right back at you. Right back at you. Thank you, Dahlia.

Lithwick: Now, our next guest spent the 1997 Supreme Court term clerking for Justice Scalia. Rachel Barkow is now the Segal family professor of regulatory law and policy at NYU Law School, and she’s the director of NYU’s Center on the Administration of Criminal Law. Rachel Barkow, welcome to Amicus.

Rachel Barkow: Thank you for having me.

Lithwick: So, Rachel, this is—we’re taping this on Friday.

We are at the funeral weekend for Justice Scalia. And this must be a really sad and hard time for you.

Barkow: It is a very sad time. But it’s also a time to reflect on the justice and the many contributions he’s made. So, it’s nice to be able to talk about those things too.

Lithwick: Well, I thought we could start by just talking about what he was like. I mean, we all have this sense of him as this larger than life, symbolic, iconic figure, but most of us didn’t know him.

Can you tell us just a tiny bit about whether he sort of was as huge a public presence even when you were face to face with him working on an opinion in the wee hours?

Barkow: So, for me, when I first met him, in my mind’s eye, he was this larger-than-life figure who existed in my law school textbooks and wrote with this style that no one I was reading was able to mimic or even come close to. So, when I first met him, I was pretty overwhelmed.

And honestly, that never went away for me. But I think that’s more a reflection of me than of anything that the justice did, because he was incredibly down-to-earth, and really warm and funny, and just really giving of his time. And he loved teaching his law clerks things. He loved working on opinions and thinking about the language. And I think one story that I’ve often told my students, this story that I’ll share with you, that I think captures him pretty well, and my own incompetence at the same time.

But when I first starting clerking, it was about a week in. I mean, I was really new, just kind of learning my way around the building. And I had sent around a memo, and I had mischaracterized something. I didn’t mention that it was a plurality, and I should have. So, I was terrified, because I realized it as soon as I sent the memo around, that I didn’t say that. And I thought, oh my gosh, you know. I’m going to go tell the justice, and I’m prepared to have his fury unleashed on me. I thought I was going to get the equivalent of one of those dissents that you read.

And so, I went in there sheepishly and I told him what I had done, horrified. I mean, truly horrified. And he looked at me and he said, if that’s the worst thing you do all year, you’ll be the best law clerk I’ve ever had. And it was such a wonderful thing to say to a terrified young lawyer that it—I just—it immediately put me at ease. And that was the kind of person that he was. You know, he was not someone who tried to intimidate you or make you feel uncomfortable.

Just the opposite. You know, he really wanted his clerks, and the people around him generally, to feel comfortable around him. And he was just a very warm person that way. And, I think of that moment a lot, and I’ve actually completely taken it from him and said it to people who’ve worked for me. Because I realized what it did for me was it just made me really want to do wonderful work for this man, who was just clearly such a giant in the field, but also just such a very warm person.

Lithwick: Rachel, Justice Scalia was pretty famous for hiring at least one clerk who didn’t always share all of his political, and ideological, and even, I think, interpretative views of how to do the job. And I think you’re one of them. I think you would say that of yourself. And did that put you in a funny position where you were the person who, you know, was there to say, but wait, but wait, no, but look at this? Or was that pretty comfortable role for you

Barkow: Honestly, I didn’t really—I mean, and I don’t know what the consistent hiring practice would or wouldn’t be. But just speaking for me personally, so, I am a Democrat. And there was no secret to that fact when I was hired by him. And so, I actually didn’t feel uncomfortable when I went to work for him, because it wasn’t as if I had a secret to hide or, you know, was waiting to be unmasked, because he knew it, I knew it. And I viewed my job as his assistant. You know, it’s—he’s the justice. It’s his vote.

It’s his way of thinking about the law. And one of his many great virtues is he tells you exactly how he thinks about the law. I think we all have a pretty good sense of that. So, when you go in there, if you go in with the frame of mind that, you know, he’s the principle, I’m the agent, and my task is to help him do his job the way I know he wants to do it, I never felt uncomfortable in that role at all. You know, on the contrary, I felt like I had a pretty clear set of instructions, frankly, given that I knew how he felt about the structure of government, and how things work, and how you look at statutes.

You know, for me, that was helpful, because I had the frame of reference that I should be using as we approached each case.

Lithwick: And Ruth Bader Ginsburg has said this week in her tribute to him—and I think some of his other former clerks who maybe don’t share his political views. But everyone has said, you know what, I’m a better writer today. I’m a better applier of doctrine and thinker about the law because of him. And I’m guessing you feel the same way.

Barkow: Oh, I have a huge debt to him. You know, one of the things that’s really wonderful about him is he is a gifted writer. And I, as someone who writes for a living, and speaking to other people out there who might be writing for a living, it is really wonderful to work for a great writer. Because you see how he approaches sentences. You know, you see how he constructs a paragraph, or a line of argument, or a turn of phrase and spends time with it. And you know, it probably won’t surprise anybody that, you know, he knows an awful lot of Latin.

And I know none. So, I learned a lot of Latin, and we talked a lot about word derivations. And it was just so much fun. I mean, if you like words and you like language, I just can’t imagine a better way to spend your year than with someone who shares that love and does such a beautiful job putting it all together to make a point.

Lithwick: And let’s stipulate that argle-bargle is in fact not Latin, correct?

Barkow: With my great knowledge of Latin, I will say, no, it is not.

Lithwick: Now, what do we make of some of the sharp elbows and pointed dissents that you referred to? Is that just Justice Scalia calling it like it is? Did he feel as though those were sort of necessary? I’m sure he did not check with clerks before he wrote some of the zingers. And I know he called them zingers.

Barkow: Yeah. You know, I don’t feel comfortable talking about his intellectual thought process when he writes those, and don’t know what it might have been.

You know, I can say from the perspective of a law professor, as someone who teaches, that they certainly have a powerful effect on students. So I do think whatever the intent of the drafter might have been, in terms of their effect on readers, they’re very powerful. And I think they’re at their most powerful when they are cutting to the points that the majority is neglecting to focus on, in places where the majority’s reasoning unwinds and is illogical.

For me personally as a reader—and I can’t speak for other readers. But for me, that’s when I think they’re at their best. You know, to the extent there are some here and there that slide into what might seem a little nastier, they’re less effective for me. Because for me personally, seeing somebody break down an argument and showing exactly where it’s illogical and exactly where it falls short, as a lawyer, to me, that’s the most powerful. And so, I like the opinions that really stick to the substance, but in the usual colorful way that he writes.

And I do think the thing that he really masters was thinking about an audience who has just read the majority opinion. And you know, you read a majority opinion and they’re all such smart lawyers on the court that of course anything they write, after you read it, you think, ah yes, that must be. And I think it’s getting that thought that, OK, they’ve just read this very persuasive thing that someone else has written. I need to take them through this in a different way, the way I see it.

And I think his greatness as a writer was really understanding, really kind of taking someone along in a journey to show where that majority opinion that he was dissenting from went wrong. And I think as a teacher I see in my students that it’s tremendously effective to have that kind of writing style. They love it. You know, when you’re sitting at home with a law book and a long reading assignment—they’ll all tell you that my assignments are too long. As long as there’s some Scalia opinions in there, it just makes it all better, because they wake you up.

You know, they’re lively and they really show you the places that you need to think about, you know, as a student, as a lawyer, as any reader of these opinions. He’s showing you exactly the spots and the issues that you need to focus on to decide, OK, which of these perspectives is the one you agree with.

Lithwick: And it’s funny. I’m listening to you and I’m remembering how often I heard Justice Scalia say, I’m not writing for my colleagues, I’m writing for the law students.

Now, I think that was a little bit probably of hyperbole. But I think he really did feel like, I’m not going to convince them. They’re just wrong. But what I might be doing is reframing this in ways that law students really, really can come along and fix this in the future.

Barkow: I think it’s certainly the case that that’s the effect. I see it when I see students, and students who disagree with him, and students who agree with him, I think both feel like you really just have to wrestle with the arguments that he’s making, because they are so powerful.

And as soon as you’re thinking about things on the terms as he’s defined them, he’s won quite a battle. Because he is now getting everyone to think about things in those kinds of veins. So, if he’s talking about history and you’re thinking, well wait, which side actually got the history right? He’s already, in some ways, won a battle there, because he’s getting you to think about it in terms of the way he’s viewing the problem, or the text of the statute and who has the better reading of it.

And I think they’re not superficial reads. They never are. They always go to some really heavy questions about our government. And I think that’s something that will live on for generations. You know, I’d be shocked if I could come back hundreds of years from now and there weren’t Scalia opinions still being taught in law school for that very reason. Because the issues that he talks about really do transcend whatever the issue is in the case, and often go to this very core question of what is it you want judges to be doing.

Lithwick: Let’s make a deal. You come back hundreds of years from now and we will book a date. I agree with you that I think there is a deep, deep thumbprint on the law that is going to last for a long time. I want to give you a chance, before I let you go, Rachel, to talk a little bit about doctrine. Because I think that sort of lost in the incredibly partisan war that exploded within minutes of the justice’s death is the extent to which on a lot of issues, a lot of privacy issues, a lot of issues that had to do with defendants’ rights, Justice Scalia voted with the left wing of the court time and time again on issues that are important.

And I’d love for you to just talk briefly about the ways in which he had certain commitments to principles about confrontation, about trial by jury, and that it doesn’t dovetail with the cartoonish pictures that are being painted this week.

Barkow: Sure. So, I’m someone who works in the field of sentencing and writes a lot about criminal law. And he has done—and more than just being a fifth vote, or a kind of joining a majority—led the charge, really the intellectual charge to get the court to think deeply early on saying what is it that has to be proven by the government beyond a reasonable doubt to a jury, versus a fact that just be found by a judge under a sentencing guideline.

And it was this deep question. Again, a deep structural question about our government, what’s the role of the jury, that he got his colleagues thinking about from the beginning of his time joining the court really, and pressed it as the issues would come up in cases. And then ultimately is able to get a majority of the court to see as he saw that it’s really fundamental that juries decide those fact that affect a statutory maximum for someone’s offense.

You know, anything, a fact that would make your statutory maximum go up, that as a matter of law has this effect, is too important to just give to a judge to find by a preponderance. It’s a core thing. It’s a core determination that the framers gave to the jury. And they gave it to the jury because individual liberty is so critical that it shouldn’t just be decided by the state. And, I have no doubt in my mind that if he was not on that court, we would not have the sentencing jurisprudence that we have today that’s been critical for so many defendants around the country.

And in the federal system alone, the effect of the rulings that the court has, led by Justice Scalia, has been that a guideline system that used to be mandatory isn’t now, and it’s an advisory system. And it’s really changed the landscape in sentencing law. And it’s just changed the way that people view what can go to a judge and what can go to a jury.

Lithwick: Rachel, you’ve already shared one memory of Justice Scalia being very lenient in his sentencing when you screwed up on the plurality opinion.

But I wonder if you could share, before our listeners clock off for the day, a memory that you particularly cherish or that has popped into your head in the last few days.

Barkow: I have a lot. And my voice might not be as steady as it has been for the other part of our conversation. But you know, one thing I had been thinking about is at my wedding.

Justice Scalia came to my wedding. And I remember beforehand thinking, oh my gosh, there are an awful lot of my friends and family and soon to be in-laws who are very, very liberal, and were asking me in advance was he coming, you know. How would that be? And you know, that’s like the last thing you want to be thinking about as you’re approaching your wedding day. And I just remember the trepidation I had of what were they going to say to him?

How was this going to go? And you know, and I couldn’t be there for every interaction obviously. But one of my favorite moments is getting my pictures and seeing one picture after another of the justice hugging somebody, arm in arm. And then various people telling me afterwards, wow, he’s a great guy. Wow. He’s so funny. He’s so full of life. I really liked him. You know, with this kind of shock and surprise. And I’ve been thinking about it a lot lately.

Because I—I do think if he’d had the opportunity to kind of meet everybody who may be judging him right now, he would win you over. He certainly had just a very warm and wonderful personality and loved meeting people of all kinds. And just—there was just such a happy bearing about him, and a joyous one, that was pretty infectious.

Lithwick: Rachel Barkow is the Segal family professor of regulatory law and policy at NYU Law School, and director of NYU Law’s Center on the Administration of Criminal Law.

She was one of Justice Antonin Scalia’s law clerks in the 1997 Supreme Court term. Rachel, thank you so much for joining us today. And we’re sorry for your loss.

Barkow: Thank you very much.

Lithwick: And that is going to do it for today’s episode of Amicus. As always, we would love to hear your thoughts about what we talked about today.

We also welcome your suggestions for issues we might want to cover in future episodes, be they Scalia-related, confirmation-related, or otherwise. Our email is amicus@slate.com, and we really love your letters. Remember that all of our past episodes, including last week’s joint podcast with our friends at Slate’s Political Gabfest, are available for your listening pleasure at slate.com/amicus. If you’re a Slate Plus member, you’ll also find transcripts there, though they do take a few days to post.

If you’re not yet a member, you can always sign up for a free trial at slate.com/amicusplus. Thank you so much to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field, and Steve Lickteig is our executive producer. The chief content officer of Panoply is Andy Bowers. Amicus is part of the Panoply network. Check out our entire roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick, and I will be back with you soon with continuing coverage of the sudden Supreme Court vacancy and the rest of the Supreme Court term right here on Amicus.