The Comebacks Will Be Back

At a December book event with Georgetown University law professor Pamela Harris, she asked whether I would have wanted to include in American Original Justice Scalia’s provocative remarks during the oral arguments in Salazar v. Buono, a case in which we are now awaiting a ruling. During those October arguments, which came just as the book was going to press, Scalia had challenged ACLU lawyer Peter Eliasberg about the symbolism of a Christian cross erected in the Mojave Desert to honor U.S. soldiers killed in World War I. Scalia questioned Eliasberg’s contention that the cross was a Christian symbol that did not honor all the war dead. “I have been to Jewish cemeteries,” Eliasberg said. “There is never a cross on the tombstone of a Jew.” As has been widely reported since, Scalia angrily retorted, “I don’t think you can jump from that to the conclusion that the only war dead the cross honors are the Christian war dead. I think that is an outrageous conclusion.” Another set of Scalia remarks that missed my publication deadline was raised, also at the Georgetown event, by Professor Stephen Bright, who specializes in capital cases. The matter involved Scalia’s dissenting opinion in the Troy Davis appeal of last August.  Scalia and Clarence Thomas were the lone public dissenters when the Court told a federal trial judge in Georgia to take new testimony in the case of Davis, sentenced to death for the murder of a police officer two decades earlier. Since the conviction, seven of the prosecution’s nine key witnesses have recanted testimony against Davis. Scalia lashed out at the Court majority for its action after “every judicial and executive body that had examined (Davis’s) stale claim of innocence has been unpersuaded.”

Scalia’s remarks in the cross case and in Davis’s claim of innocence are but two of many stand-out protestations. There were dozens before the book deadline, and there have been several since. I’ve found that everyone has a favorite (or especially abhorred) Scalia line—many of which simply could not make American Original. His phrases are singularly vivid. A friend in law school said for his constitutional law exam last month the professor listed quotations from cases and asked students to identify the author. The Scalia quotes were no-brainers. I recalled that when I was in law school and first doing Lexis-Nexis searches, I discovered that I could plug in just a few remembered words from Scalia and get precisely the opinion I was seeking.  “A sort of junior-varsity Congress” was his memorably derogatory phrase about the U.S. Sentencing Commission in his lone dissent to the 1989 Mistretta v. United States, which upheld the constitutionality of the commission and its sentencing rules. Former Scalia law clerk and U.S. solicitor general Paul Clement invoked other unforgettable Scalia lines during a 2008 tribute to his former boss, “Who among us would rather read about a three-pronged doctrinal test than about 60,000 naked Hoosiers [a reference to Scalia’s concurrence in the 1991 Barnes v. Glen Theatre] or even just nine people selected at random from the Kansas City phone book [from Scalia’s concurring opinion in the 1990 Cruzan v. Missouri Department of Health]?” Clement showcased the positive side of Scalia’s colorful use of language. Others, including University of California-Irvine law dean Erwin Chemerinsky, have contended Scalia demeans his colleagues and the Court with his retorts. Wherever one stands on the justice’s attention-getting prose, there will be more to debate. We are awaiting decisions from the most contentious cases argued in the fall. Only four signed opinions have been issued for the 2009-10 term. And in none of those four cases did Scalia write. There may be many comebacks and wisecracks in the works.