John G. Browning 2016-05-03 00:36:01
On February 13, 2016, this nation lost one of the greatest legal giants ever to sit on its highest court with the death of U.S. Supreme Court Justice Antonin Scalia. Regardless of whether one agreed with the opinions he issued over the span of nearly 30 years on the court, one could not deny the razor-sharp intellect or the eloquent yet accessible writing that went into those opinions. Justice Scalia was guided by his philosophies of originalism and textualism—the beliefs that law is an “is” rather than an “ought.” Judges, he would note, should interpret the law as people at the time the law was written would have understood the words. Statutes, cases, and certainly the Constitution were to be read for what they said, not for what a judge wished they would say. In response to those detractors who demanded “updating” or a “living Constitution,” Justice Scalia would point out that we already had a mechanism to “update” our laws: the democratic process, designed to protect us from activist judges substituting their own policy preferences for those of the American people. But plenty of political pundits and legal scholars have already commented on and will continue to debate Justice Scalia’s legacy. I’d like to share a different perspective: the human side of him. I first met Justice Scalia years ago in Washington, D.C., at the Burton Awards for Distinguished Legal Writing. I was among the honorees for an article I’d written, and Justice Scalia and legal writing guru Bryan Garner received the award for their book Making Your Case: The Art of Persuading Judges . Bryan and I have been friends since my days working as his first research assistant at the University of Texas School of Law, not long after his book A Dictionary of Modern Legal Usage was published. I was feeling a little lost in the crowd of judges, academics, and high-powered partners from the largest law firms in the country, when I suddenly saw the sea of tuxedos and evening gowns part and I heard Bryan’s voice booming, “Nino, here is the young Dallas lawyer I was telling you about.” With that, I found myself shaking hands and making small talk with Justice Scalia, one of my legal heroes. Besides a love of good legal writing and a mutual friend in his co-author Bryan, we discovered other things in common: Both of us were New Jersey-born, the sons of fathers who were Rutgers graduates (Scalia’s father, a professor of Romance languages, would later move the family to Queens), and both of us were devout Catholics who had been educated by Jesuits. Together, we bemoaned the difficulty of finding authentic New York Italian cuisine in far-flung places like Virginia and Texas. That chance meeting set the tone for our future discussions, held almost always at Bryan’s home or office when Justice Scalia would travel to Texas to work with his celebrated coauthor or to give a speech. I got to see a side of him that the public didn’t get to see: a witty, engaging person with the courtly manners of an Old World gentleman and a singular devotion to his large family (nine children and more than 30 grandchildren). Perhaps I missed out on a chance to pick one of the greatest legal minds of the century, but our conversations revolved around family, movies, tennis, opera, writing, fine wines—anything but the law. He was unfailingly gracious, and despite being notoriously private, Justice Scalia agreed to let me interview him for a magazine article about Bryan. I mailed him copies of some of my other writings at his request; when I offered to email them, he admitted, “John, I don’t do the Internet.” I remember the last time I saw him. It was at Bryan’s house, and my wife and I had brought a nice pinot noir (a favorite of Justice Scalia’s). We’d had a very pleasant evening, but as it got late, my wife was pulling me in the direction of the door. Just as I was saying my goodbyes, Justice Scalia invited me to join him and Bryan on the patio for a cigar. The fact that I don’t smoke didn’t deter me from giving my wife an imploring “can’t I stay?” look. But she reminded me of the late hour and long drive ahead of us, and so I passed, secure in the assumption that I’d see Justice Scalia again on some future visit. On February 13, I wished that I had stayed for that cigar. Requiescat in pace, Justice Antonin Scalia. You will be missed. JOHN G. BROWNING is a partner in Passman & Jones in Dallas, where he handles commercial litigation, employment, health care, and personal injury defense matters in state and federal courts. He is an award-winning legal journalist for his syndicated column, “Legally Speaking,” and the author of the Social Media and Litigation Practice Guide and a forthcoming casebook on social media and the law. He is an adjunct professor at Southern Methodist University Dedman School of Law.
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