Nino and Me
It’s been nearly two weeks since we heard about Justice Antonin Scalia’s untimely passing. Given the demands of the news cycle, I found myself on CBS radio about 20 minutes after I got wind (in a phone call from the ubiquitous Josh Blackman) of this tragic development that would upend the holiday weekend. And then it was into the media maelstrom for the next 72 hours or so, the waves from which continue with no end in sight.
That week was one of the most difficult of my professional life. Not because churning out op‐eds, delving into a jurist’s work, and responding to the political narrative is particularly new or challenging — to use the line from the GEICO ads: if you’re a think tank scholar, it’s what you do — but because, like most in the originalist legal community, I was in mourning. Scalia wasn’t a libertarian, but he helped our movement immensely (and was typically in dissent where we disagreed). Besides, for lawyers under 50 or so, it’s impossible to imagine a Supreme Court without him.
Unlike Roger Pilon and Walter Olson, however, I didn’t know him personally. In fact, I only met him a few times, essentially just for a quick handshake or book‐signing. The only meeting of note was when a Federalist Society officer introduced me at the 2012 lawyers convention, describing me as coordinator of the amicus‐brief effort in NFIB v. Sebelius (the first Obamacare case). Justice Scalia nodded, sighed, and said, “yeah, sorry about that.”
And yet, when his funeral rolled around this past Saturday, I was shaken. I had thought about attending, but didn’t want to be out of place among people who truly knew him. Besides, I was doing some more media commentary before the ceremony started and then needed to get home to help care for my seven‐week‐old son. So I watched the funeral on TV, mesmerized and misty‐eyed. In retrospect, I probably should’ve directed the car from CBS studios to head up to the Basilica of the National Shrine of the Immaculate Conception — I would’ve arrived maybe 15 minutes after the funeral started — but I wasn’t really thinking straight.
At least there will be a memorial at the Supreme Court at some point later this winter or spring. (I had stood in line last Friday to pay my respects when Justice Scalia was lying in state, but ultimately abandoned that effort when the line stopped for President Obama’s arrival and I started freezing after foolishly neglecting to bring my coat — so alas it would not be a repeat of my experience waiting overnight to say goodbye to President Reagan.) Hopefully I will have regained my bearings by then.
In the meantime, Justice Scalia’s absence — while a huge loss for the nation — hardly hampers the functioning of the Supreme Court even if his seat remains vacant until after the election, as it should.
