Justice Thomas on Antonin Scalia

Justice Thomas on Antonin Scalia

He spoke to us about Win­ston Churchill in San Fran­cis­co in 2009. Ever since, I have sought out the uncom­mon speech­es of Jus­tice Clarence Thomas. Invari­ably I find them mov­ing, elo­quent, and instruc­tive on things I haven’t con­sid­ered sufficiently.

Jus­tice Clarence Thomas at the Fed­er­al­ist Soci­ety, 17 Novem­ber 2016. (C-span)

Such was his Novem­ber 2016 trib­ute to Antonin Scalia, giv­en to the Fed­er­al­ist Soci­ety. He began with exam­ples of the late Justice’s wit (beloved alike by Jus­tice Thomas and Jus­tice Ruth Bad­er Gins­burg. Respec­tive­ly, they agreed with Scalia most of the time—and lit­tle of the time.):

In PGA Tour vs. Mar­tin [Scalia] wrote: “I am sure that the framers of the U.S. Con­sti­tu­tion aware of the 1457 edict of King James II of Scot­land, pro­hibit­ing golf because it inter­fered with the prac­tice of archery, expect­ed that soon­er or lat­er the paths of golf and gov­ern­ment, the law and the links, would once again cross, and that the judges of this August Court would some day have to wres­tle with the age-old jurispru­den­tial ques­tion for which their years of study in the law have so well pre­pared them: Is some­one rid­ing around a golf course from shot to shot real­ly a golfer?”

And we will not soon for­get Jus­tice Scalia’s rebuke of leg­isla­tive his­to­ry in Chisholm vs. Roe­mer. There the Court rea­soned that the absence of leg­isla­tive his­to­ry could be likened to the dog that didn’t bark. Jus­tice Scalia respond­ed: “Apart from the ques­tion­able wis­dom of assum­ing that dogs will bark when some­thing impor­tant is hap­pen­ing… In ascer­tain­ing the mean­ing of a statute, a court can­not in the man­ner of Sher­lock Holmes pur­sue the the­o­ry of the dog that didn’t bark. We are here to apply the statute, not the leg­isla­tive his­to­ry… Statutes are the law, though sleep­ing dogs lie.”

The Heart of Thomas’s Message

For decades in cas­es large and small, Jus­tice Thomas con­tin­ued, “Jus­tice Scalia delight­ed us with his with his com­mand of the Eng­lish lan­guage.” Then he got down to the more pro­found things he had come to say about his friend:

Much may be said about him, but lit­tle needs to be said for him…. I can hear his voice. “What do you think is the rea­son Amer­i­ca is such a free coun­try? If you think that what sets us apart is the Bill of Rights, you’re crazy…. The Bill of Rights for the for­mer evil empire, the USSR, was much bet­ter than ours.” He would then make his point. “With­out the struc­tur­al con­straints that the Con­sti­tu­tion places on gov­ern­ment pow­er, the Bill of Rights is just words on paper.”

Jus­tices Scalia and Gins­burg. (thewayofimprovement.com)

The sep­a­ra­tion of pow­ers, Scalia wrote, “may pre­vent us from right­ing every wrong—but it does so to ensure that we do not lose lib­er­ty.” Thomas then quotes James Madi­son, from across the centuries:

“If angels were to gov­ern men, nei­ther exter­nal nor inter­nal con­trols on gov­ern­ment would be nec­es­sary. In fram­ing a gov­ern­ment which is to be admin­is­tered by men over men, the great dif­fi­cul­ty lies in this: you must first enable the gov­ern­ment to con­trol the gov­erned; and in the next place oblige it to con­trol itself.”  —Fed­er­al­ist 51

C-Span’s five-minute pré­cis of Jus­tice Thomas’s speech can be heard, and a rough tran­script of his text, can be had by click­ing here.

For those will­ing to devote a lit­tle more time to this learned man, click here. (Scroll to minute 20 for the speech proper.)

2 thoughts on “Justice Thomas on Antonin Scalia

  1. I’m not sure of her con­text there, since some­one who vis­it­ed with him often is like­ly to have shared his famous sense of humor. But col­le­gial­i­ty among polit­i­cal or philo­soph­ic oppo­sites, a lost Churchillian art, is so rare these days as to be wor­thy of notice, and example.

  2. It’s pleas­ing fic­tion that makes us feel bet­ter about our pol­i­tics to cite the friend­ship between Gins­burg and Scalia, but the jus­tice was bare­ly cold and Gins­burg looked back on a series of 4-4 splits that favored the left, say­ing with ghoul­ish glee, “Think what would have hap­pened had Jus­tice Scalia remained with us.” I’ve nev­er been glad a good friend of the sort you described had died ’cause he or she didn’t vote my way. I have been priv­i­leged to have din­ner with Jus­tice Thomas on mul­ti­ple occa­sions. I can tell you for cer­tain he loved Scalia more, and cer­tain­ly didn’t just see him as a vote.

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