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Scalia's Colleagues Speak On His Early Term Years
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Scalia's Colleagues Speak On His Early Term Years

Law

Scalia's Colleagues Speak On His Early Term Years

Scalia's Colleagues Speak On His Early Term Years
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Justice Antonin Scalia served on the Supreme Court for decades. Rachel Martin talks with two of his former legal clerks — one from his early years on the Court and one from the middle of his career.

RACHEL MARTIN, HOST:

This is WEEKEND EDITION from NPR News. I'm Rachel Martin.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT BARACK OBAMA: He will no doubt be remembered as one of the most consequential judges and thinkers to serve on the Supreme Court. Justice Scalia dedicated his life to the cornerstone of our democracy, the rule of law.

MARTIN: That was President Obama speaking last night on the legacy of U.S. Supreme Court Justice Antonin Scalia. Scalia died this weekend at the age of 79. He served on the court for almost 30 years, and we are joined now by two of his former legal clerks. Lee Liberman Otis was one of Justice Scalia's first clerks when he was appointed to the court in 1986 by President Reagan. She is on the line this morning from Hawaii. Thanks so much for being with us, Lee.

LEE LIBERMAN OTIS: My pleasure.

MARTIN: And Professor Brian Fitzpatrick. He clerked for Justice Scalia in 2001. Professor Fitzpatrick joins us from the studios of Vanderbilt University. Thanks so much for being with us.

BRIAN FITZPATRICK: My pleasure.

MARTIN: Lee, I'm going to start with you. You knew Justice Scalia back when he was your professor at the University of Chicago, I understand. What was he like as a teacher?

OTIS: He was great. He was not terribly different, in a way, from how he was as a justice, interestingly enough. He was a great user of the Socratic method, which, you know, involves asking questions of students. And I'm not entirely sure that the Supreme Court advocates appreciated his training in that respect.

MARTIN: (Laughter) He was known for writing carefully considered opinions that were funny, also biting. Is that who he was in person?

OTIS: Yes, I think, in a lot of ways. I think that he was - as a boss, he was a pleasure to work for in many ways because he really actually wanted to know - he knew what he thought, but he really wanted to know what we thought. But then he would challenge what we thought and make sure that we could defend it. And I think, you know, the key to working for him was understanding that what he said in response to something that we said - one of us said oh, that's ridiculous - the key was - to working with him was understanding that what he meant to do was start a conversation with that, not end it.

MARTIN: Brian, is that how you felt? What was it like working for him?

FITZPATRICK: Oh yes, he loved to debate. He loved to hear different opinions than his own. You know, he often hired liberal law clerks. He always said he loved most of all an analytical liberal, I guess because some liberals he thought weren't analytical.

MARTIN: (Laughter).

FITZPATRICK: But he wanted to be challenged. And if he didn't have a liberal about to challenge him, one of the clerks would always play devil's advocate and try to make him the best Scalia that he could be, the most honest and careful about following his own philosophies of originalism and textualism.

MARTIN: You were with him in some important moments. What do you take away with you from your experience with him? What are some of the moments that stand out to you?

FITZPATRICK: Well, you know, I loved watching him write opinions because he was such a powerful writer. I mean, anyone will tell you that he's always the opinion you want to read first in any case. And he was such a powerful writer, and I watched him write his opinions, and I figured out one of the ways that he did it was he wrote his opinions like they were speeches. He would read them aloud as he wrote them because he wanted them to be punchy like his speech was. And that's why I think he was such an effective writer. And that's something that I've carried with me since I've left. I also was there during 9/11. That year was my year of clerking, and that was a very tough year for all of us. We had the anthrax scare in Washington that same year. And it really made you understand the gravity of the position. There was a new seriousness, I think, that came to everything that we did that that year because, you know, our very institutions of democracy were in some ways under attack. And I think that made the year just a much more serious one.

MARTIN: It's fair to say, I think, that Scalia was a divisive figure to many people, especially in American politics. How did he handle the relentless scrutiny of his work?

FITZPATRICK: I think he loved it, to be honest with you. I think he didn't mind making waves. He always said - and this is why he liked law clerks to challenge him - he always said that he himself was a contrarian. He liked to mix things up. He liked to go outside the box. He liked to be provocative. And so I don't think it bothered him at all that he stirred up a lot of discussion and even acrimony. I think that's kind of how he felt he wanted to live his life.

MARTIN: Lee, how did he shape what kind of lawyer you would become?

OTIS: I think that I just became - first of all, I think that in a way, I guess he shaped my view of law, and that in turn shaped the kind of lawyer I became more than anything else. I mean, I think that before Scalia on the bench as a Supreme Court justice, basically almost everyone who was anyone thought that the notion that the Constitution was a law that judges and justices are supposed to follow was hopelessly naïve, and that no smart person could take this view of the Constitution seriously. But I think that Justice Scalia really changed that dramatically because he wasn't only smart, he was one of those powerful intellects in the country. And he was also one of the greatest writers who's ever sat on the court. So when he took that view that the Constitution was a law and he made arguments based on the Constitution's original meaning, and when he demolished arguments based on other considerations, it made a huge impact and it changed the entire legal conversation. And I was there, you know, when he started thinking about these things, I think, which was way back when he was a law professor. And so I think it just affected how I thought about law for my entire life.

MARTIN: It's also - we should note it's the middle of the night in Hawaii. You clearly feel a loyalty to this man. Why?

OTIS: He was, you know, just a remarkable person, I guess. He was - you know, he was a great scholar and a great justice and a real person. And, you know, I think that his absence is going to leave a gaping hole.

MARTIN: Yeah. And I'll just let Brian have a final word. What will you take with him - with you?

FITZPATRICK: Well, Justice Scalia was not just a justice. He was a movement. He started a movement about how to think about the law and how to think about judges. And that movement will continue long, long after he's gone.

MARTIN: Professor Brian Fitzpatrick and Lee Liberman Otis, both former clerks for Supreme Court Justice Antonin Scalia, who passed away this weekend at the age of 79. Thanks to you both.

FITZPATRICK: Thank you.

OTIS: Thank you.

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