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John Marshall Foundation Board Member Kevin Walsh’s Tribute to Justice Scalia

May 10, 2016 by Joni Albrecht

“Justice Scalia and the Next Generation of Constitutional Custodians”

Justice Antonin Scalia had a way of getting right to the point. “I have never been custodian of my legacy,” he said in an interview a few years ago. “When I am dead and gone, I’ll either be sublimely happy or terribly unhappy.” Never one to let a point just sit out there, Justice Scalia followed up with a brief disquisition on heaven and hell, and on the devil and his wiles.

Memento mori is a reminder to put last things first and a helpful way of keeping perspective on what really matters. But this is SCOTUSblog, not Mirror of Justice, so in reflecting on Justice Scalia, I will deal no further with either last things or first. Nor will I attempt to improve on other accounts by former clerks that vividly paint Justice Scalia’s persona in living color.

I shall reflect instead from the perspective of a next-generation volunteer custodian. Discount my perspective for including the personal admiration of a former clerk, should you wish. But there are more of us volunteer custodians than you might think.

For starters, we agree with Justice Scalia that being a custodian is an important job – not so much custodian of one man’s personal legacy, mind you, but of the constitutional understanding handed down to us through him. Justice Scalia’s job as a judge in constitutional cases, he thought, was not to improve on the Framers’ handiwork but to maintain it. And that job description is itself worth maintaining. Understood correctly, maintenance man for the constitutional order is an exalted function. It is a caretaking job that requires a different mindset than the “Mr. Fix-It Mentality” Justice Scalia criticized in his Hamdi v. Rumsfeld dissent. It is not the mission of a Supreme Court Justice in constitutional adjudication, he reminded us, to “Make Everything Come Out Right.”

People tend to like judges who make us feel as if they can Make Everything Come Out Right. But that is all the more reason to be on guard against basing one’s self-understanding on what other people like.

Justice Scalia warned that judicial desire for elite approval could corrupt constitutional law. He was not alone in expressing this conviction. It was Justice Alito, after all, who lamented in his Obergefell dissent the “deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation.”

Avoiding the particular temptation that could lead to this type of corruption was easy for Justice Scalia. He cared little to cultivate the approval of others. It just did not matter to him.

Indifference of this sort stands out anywhere, but especially so in Washington, D.C. Spend some time in our nation’s capital, and you’ll know what I mean. Honest self-reflection on the experience is likely to bring you to sense in yourself the same hunger for approval that you know can exercise such a distorting effect in others.

At least that was my experience. I certainly craved Justice Scalia’s approval during the year I spent as his law clerk at the Supreme Court. Not that there’s anything either unusual or inherently bad in this. Channeled properly, a desire for approval can nourish healthy respect for the reasonable appraisals of others. And all law clerks care (or ought to) about earning and maintaining their judge’s approval. But the very worst way to go about obtaining Justice Scalia’s approval, of course, was to seek it. …

Those familiar with Justice Scalia’s families (both biological and legal) already know just how generative he was. And we also know that he believed himself to be engaged in a work that could take generations. The next-generation constitutional custodians I know are not Scalia clones; the man is irreplaceable. But we know the value of our inheritance. And we will be faithful custodians of his trust in us, in the American people, and in our collective capacity for self-government under law.

For complete tribute visit: http://goo.gl/1raxFB

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