- The Washington Times - Thursday, February 18, 2016

As the nation pays its respects to the late Supreme Court Justice Antonin Scalia on Friday, friends and admirers say they will remember his combination of gregarious charm and matchless intellect that conservatives revered and many liberals couldn’t help but respect.

Whether he was writing for the majority or authoring a biting dissent, Justice Scalia’s fidelity to his conservative “originalist” view of the law and his analytical mind have placed him alongside legal giants such as Louis Brandeis and Oliver Wendell Holmes Jr. Along the way, the intellectual force of his reasoning commanded appreciation.

“I am sure he’s going to go down as one of the three or four most influential of all Supreme Court justices,” said Michael McConnell, director of the Constitutional Law Center at Stanford Law School. “I’ve taught constitutional law for a long time. There is no other justice whose opinions are more likely to cause students to change their minds than his, even progressive students. Even though they’re trying to resist it.”

The body of Justice Scalia, who died last weekend at age 79, will lie in repose Friday in the Great Hall of the Supreme Court as mourners including President Obama arrive to pay their respects. A funeral Mass will be held Saturday morning at the Basilica of the National Shrine of the Immaculate Conception in Northeast Washington.

One of Justice Scalia’s five sons, Father Paul Scalia, led a private ceremony in the Great Hall Friday morning for family, the eight remaining justices, Supreme Court staff, former law clerks and others. The justice’s flag-draped casket was borne into the Supreme Court by court police officers.

His casket is resting on the Lincoln catafalque, loaned to the high court by Congress.

In a highly partisan era, on a sharply divided court, the conservative jurist made friends through the sheer force of his personality. His spirit was so powerful, and his sudden loss so shocking, that some who knew him are still talking about him in the present tense.

“He loves life,” Mr. McConnell said. “He hunts, he goes to the opera, he loves good food and good wine, he loves good conversation, he’s a little loud, he’s opinionated, he plays cards. He doesn’t hold back.”

Randy Barnett, a professor at the Georgetown University Law Center and director of the Georgetown Center for the Constitution, said he was so stunned upon learning of Justice Scalia’s death that he was unable to conduct an interview on network TV that day.

“I actually didn’t know how much I cared for him until I heard the news,” Mr. Barnett said. “It shook me so much that I couldn’t even go on [television]. I couldn’t gather my emotions together. I was in shock — just shock and loss.”

Justice Scalia knew he was a lightning rod for partisan wrath, a role that friends say he took in stride. Even though he had admirers on the left, several people interviewed for this article said privately that they are sickened by vicious partisan reactions to his death and they don’t want it to detract from the formal tributes to his life.

Even before embarking on his influential career on the high court, Justice Scalia impressed students at the University of Chicago Law School with his unassuming brilliance and sense of humor.

David McIntosh, president of the Club for Growth and a former congressman from Indiana, was a second-year student under Justice Scalia at the University of Chicago in the early 1980s. He remembered his professor’s wit on display on the day in 1982 when President Reagan nominated Justice Scalia, the father of nine, to the U.S. Court of Appeals for the District of Columbia.

“We were in class, excited for him,” Mr. McIntosh recalled. “I said to him, ‘How are you going to be able to afford to raise nine kids on a judge’s salary?’ He sort of smiled and said, ‘I’ll just buy a cheaper brand of beer, and we’ll make it work.’ That was the type of personality he had. He didn’t take himself seriously.”

After he was elevated to the Supreme Court in 1986, Justice Scalia’s sense of humor even spawned an unofficial study of sorts. Jay Wexler, a professor at Boston University School of Law, noticed that transcripts of oral arguments at the court showed Justice Scalia’s one-liners prompted laughter more often than those of any other justice. He began to keep track of the high court’s laugh lines.

“It’s really consistent,” Mr. Wexler said. “Scalia always wins, and [Justice Stephen G.] Breyer is always second.”

In the ruling of King v. Burwell, Justice Scalia criticized the majority for rewriting the law to uphold Obamacare and wrote, “We should start calling this law SCOTUScare.”

Mr. Wexler, who clerked for Justice Ruth Bader Ginsburg in the late 1990s, remembered going out for lunch with Justice Scalia and other law clerks one day at the old A.V. Ristorante Italiano on New York Avenue in Washington.

“They had opera on the jukebox,” he said. “We drank wine and talked about grammar. [Justice Scalia] had these grammar hang-ups. He was so boisterous and had such a big personality.”

About his legal mind and his impact on the law, there was simply a sense of awe.

“Justice Scalia, at his very core, was committed to the rule of law over his own personal political preferences,” said Mr. Barnett. “Even though none of us are perfect at pursuing that, I believe he valued it and it was his core central belief.”

Said Mr. McConnell, “The most important thing about ‘Nino’ Scalia is that he understood and has caused the rest of us to understand that constitutional law really is law. It’s not just a matter of nine wise people making up rules that the rest of the country has to comply with. He did it by an unusual degree of consistency, eloquence, persistence and force of personality.”

He said some of Justice Scalia’s written opinions “genuinely sing,” and pointed to a dissent he wrote in 1996 in U.S. v. Virginia, which overturned single-sex education at the Virginia Military Institute.

“Much of the court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education,” Justice Scalia wrote. “Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution.”

He added, “So to counterbalance the court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter majoritarian preferences of the society’s law-trained elite) into our Basic Law.”

Mr. McIntosh said he admired Justice Scalia’s consistent approach to the law.

“He forcefully laid out a theory of how to be a constitutional judge of the original meaning, and then he was consistent with it, even if the result wasn’t something you thought maybe his political preference would be,” he said.

Justice Scalia’s death has provoked a partisan furor over filling his seat. Some Senate Republicans are vowing to block any nomination by Mr. Obama, saying the person who takes the presidential oath next year should appoint a successor. Mr. Obama says it’s his constitutional duty to name someone soon and that the Senate must give the nominee a fair hearing.

Mr. McIntosh said Justice Scalia probably would have agreed, quietly, with the president.

“I think he would say everybody should do their job under the Constitution — the president should nominate, that’s his role, but the Senate should be free to not confirm if they didn’t think it was the right person,” Mr. McIntosh said. “Chances are [Justice Scalia] would never come out and actually say that, because he would view all of that as a political matter, and thinks judges shouldn’t weigh in on political matters.”

Regardless of the next justice’s identity or political persuasion, Mr. Wexler said, he hopes the person has a sense of humor. He said that is one of the many reasons Justice Scalia will be missed.

“It’s going to be completely different now,” Mr. Wexler said. “There’s going to be a lot less laughter. It’s going to be really sad for quite a while. I think that first day back [in session] is going to be really eerie and sad. I’m just hoping the new nominee is also funny, whoever that person is.”

• Dave Boyer can be reached at dboyer@washingtontimes.com.

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