TBA Law Blog

Posted by: William Harbison on Mar 1, 2016

Journal Issue Date: Mar 2016

Journal Name: March 2016 - Vol. 52, No. 3

News came this past weekend that Justice Antonin Scalia died unexpectedly while visiting a ranch resort in Texas. I began to get calls and emails on Saturday afternoon, and the sad news dominated the news coverage for the rest of the weekend. There is no doubt that Justice Scalia’s death is a huge event in the legal community. I offer a few observations about this provocative and controversial person.

My first thoughts are of sadness and reflection. Justice Scalia served the public for many years, having been appointed to the United States Supreme Court by President Reagan in 1986. He was, by all accounts, devoted to his family and friends. He spoke at the Southern Conference of Bar Presidents in the fall of 2015, and I was privileged to attend on behalf of the TBA. He was warm and familiar with the small crowd, obviously comfortable to be among fellow lawyers. Notably, he counted among his close friends fellow Justices Ruth Ginsberg and Elena Kagan, members of the court with whom he often disagreed. The ability to disagree without having the disagreement become personal is of immense importance in our system of justice.

Justice Scalia will undoubtedly be remembered for his devotion to the doctrine of originalism in interpreting the Constitution. It is not a doctrine with which I personally agree. In my view, if courts were limited to viewing the Constitution as it was understood by people over 200 years ago, critical and important individual rights would go unprotected. Nevertheless, Justice Scalia’s devotion to originalism is a testament to the search for a principled way for courts to decide cases. And the interplay among different legal doctrines advances the dialogue — moving judges and legal scholars to refine and focus their thinking. 

The sharpness — even bitterness — of Justice Scalia’s writing also deserves mention. Many of his dissents (and he was a frequent dissenter) include language that borders on the offensive, sometimes ridiculing the reasoning of fellow justices or advocates. In the Obergefell case from last year, in which the majority upheld the right of same-sex couples to marry, Justice Scalia characterized Justice Kennedy’s opinion as being “as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.” And this quotation is far less acerbic than many of his barbs. The sincerity of Justice Scalia’s deeply held views cannot be denied, but language of this sort detracts, in the view of many, from the force of his opinions. 

The fact that justices often serve many years or even decades on the Supreme Court underscores the significance of Justice Scalia’s death. In fact, it is not common for a sitting justice to die while still in office. I hope that this event is an opportunity for the entire legal community to reflect on both the good and the controversial aspects of his long career.

Bill Harbison WILLIAM L. HARBISON is a member of Sherrard & Roe PLC in Nashville with a general civil practice. A graduate of Harvard Law School, he is a past president of the Nashville Bar Association.