The voice came over the phone, a voice with energy and welcoming comradery, from one I had not yet met: “Hadley, this is Nino Scalia.” It was the spring of 1977; I was a Fellow at the Smithsonian, about to present a paper for my final seminar. Antonin Scalia had just left his post as head of the Office of Legal Counsel at the Department of Justice with the end of the Ford Administration – or as he would put it, “when the people threw us out.”
He was at the American Enterprise Institute now, just before he would begin a distinguished career as a teacher of law at the University of Virginia and my own University of Chicago. Of all things, he was being recruited as a discussant for my paper. It was a wonder that he would be willing to carve out time to do that, but he engaged himself in this seminar with characteristic wit and gusto. The whole thing could be understood solely as an expression of his large, good nature, which would never fade. His friends have glided happily over the years in the currents generated by that nature and by his spirited family, in the lives they have drawn in with them.
In the banter and laughing – and arguments – over the years, he has tilted with some of his friends over the matter of “natural law.” The Justice has been famously dubious, at times scathing. My own argument has been that he has shown us handsomely, in his work, how a jurisprudence of natural law may be done, even while professing up and down that it cannot be done. As Aristotle noted, the distinct nature of human beings is marked by the capacity to give and understand reasons over matters of right and wrong. As Aristotle saw, there is something approaching the divine in the capacity to grasp propositions not bounded by space and time, truths that would hold in all times and places and not decompose, as all material things decompose.
The natural law may be shown in the disciplined engagement of the “laws of reason” in the cases that come before us. My friend has boasted that he had never taken a course in logic, and yet he has been the most relentless logician on the Supreme Court. And he has done the most important work of natural law as he has challenged, in the most demanding way, the premises that the Court has put in place as it removed protections of the law from unborn children, created novel licenses in sexuality, and undermined support for marriage as an institution.
In cases prosaic and grand, he has managed to use the key of propositional logic to expose the vacuities that may beguile lawyers and judges. In one case, he posed this Talmudic question to Justice Kennedy: “[W]hat possible linguistic usage would accept that whatever . . . affects waters of the United States is waters of the United States?” It was a simple flexing of propositional logic, but one that could limit the reach of a federal statute.
Scalia’s supreme achievements, in this vein, have come at those moments in which he has shown certain claims to rights as so exquisite that they virtually extinguish themselves. One of my favorites was Lee v. Weisman (1992). The Court struck down, as an establishment of religion, a non-denominational prayer, offered by a rabbi, at the graduation of a public high school in Providence. Justice Kennedy thought it was an unwarranted psychological coercion that a girl, a professed atheist, should be compelled to sit in silent acquiescence and respect while others invoked God.
Scalia pointed out, in dissent, the famous flag-salute case. Parents who were Jehovah’s Witnesses were faced with jail for parental neglect if their child refused to salute the flag and speak the pledge. But that case did not involve a claim of religious belief; the Court had protected the student and his family from the imposition of a political orthodoxy.
As Scalia pointed out, the combination of the two decisions was now explosive. The student in Providence had not been compelled to do or say anything. And so we would gather now that a student objecting, say, to Jesse Jackson as a speaker could not merely absent himself from his commencement; he could invoke his right not to suffer the presence of Jackson on the platform. The only thing more bizarre than this implication is the example of judges, entranced by high sentiment, and heedless of the logic they are putting into place.
In the case of assisted suicide in Oregon, Scalia invoked the Hippocratic oath – that the purpose of medicine and drugs is to preserve life, not to speed the death of the patient. Justice Kennedy allowed that this venerable principle was “reasonable.” Yet it was but “one reasonable understanding of medical practice.”
Scalia was incredulous? One view among many? Three times in his dissent he insisted that the opinion of the attorney general, in rejecting use of drugs for assisted suicide, formed the “most natural interpretation.” “Natural”? As in reflexes? No, because Janet Reno, as attorney general, had different reflexes. She had approved the use of drugs for assisted suicide. Scalia must have meant “natural” as in accord with the laws of reason.
With those laws of reason ever in him, he has never been detached from the natural law.