Official Alderson Reporting Company 1 1 SUPREME COURT OF THE UNITED STATES 2 ASSOCIATE JUSTICE ANTONIN SCALIA MEMORIAL 3 4 5 SPECIAL SESSION OF THE SUPREME COURT 6 7 8 9 10 11 3:00 p.m. 12 Friday, November 4, 2016 13 14 15 16 17 18 Courtroom 19 Supreme Court of the United States 20 Washington, D.C. 21 22 23 24 25 Official Alderson Reporting Company 2 1 C O N T E N T S 2 AGENDA ITEM PAGE 3 PRESENTATION OF RESOLUTIONS 4 IAN H. GERSHENGORN, Acting Solicitor 5 General of the United States 3 6 REQUEST TO ACCEPT RESOLUTIONS 7 LORETTA E. LYNCH, Attorney General of the 8 United States 10 9 RESPONSE 10 JOHN G. ROBERTS, JR., Chief Justice 11 of the United States 14 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Official Alderson Reporting Company 3 1 P R O C E E D I N G S 2 (3:00 p.m.) 3 CHIEF JUSTICE ROBERTS: The Court is in 4 Special Session this afternoon to receive the 5 resolutions of the Bar of the Supreme Court in tribute 6 to Associate Justice Antonin Scalia. 7 The Court recognizes the Acting Solicitor 8 General of the United States. 9 GENERAL GERSHENGORN: Mr. Chief Justice, and 10 may it please the Court: 11 At a meeting today of the Bar of this Court, 12 resolutions memorializing our deep respect and affection 13 for Justice Scalia were adopted unanimously. 14 Today, the Bar of this Court convenes to pay 15 respect to a towering figure in American law, a Justice 16 of conviction, character, and courage, a treasured 17 colleague, an irreplaceable mentor, and a man devoted to 18 his country, its Constitution, and this Court. 19 In his nearly 30-year tenure on this Court, 20 Antonin Scalia displayed a forceful intellect, a 21 remarkable wit, and an inimitable writing style. His 22 ideas helped to shape the way we think about law. And 23 for those blessed to know him, his compassion, humanity, 24 and commitment to his family, friends, and faith will 25 remain an inspiration. Official Alderson Reporting Company 4 1 Antonin Scalia was born on March 11th, 1936 2 in Trenton, New Jersey, and grew up in the Elmhurst 3 neighborhood of Queens. After graduating from Xavier 4 High School in Manhattan and Georgetown University, 5 Justice Scalia attended Harvard Law School. 6 Although he relished the academic 7 environment at Harvard, the signal event of his Harvard 8 years occurred outside the classroom, when he met 9 Maureen McCarthy. Their 55-year marriage produced nine 10 children and dozens of grandchildren. 11 Following a stint in private practice, 12 Justice Scalia accepted a post at the University of 13 Virginia School of Law in 1967, and then held a series 14 of government positions that culminated in his serving 15 as Assistant Attorney General for the Office of Legal 16 Counsel in the Department of Justice. 17 In 1977, Justice Scalia returned to 18 academia, joining the University of Chicago faculty. In 19 1982, President Reagan nominated him to the U.S. Court 20 of Appeals for the District of Columbia Circuit. And 21 then, in 1986, President Reagan nominated Justice Scalia 22 to this Court. 23 Over the next three decades, Justice Scalia 24 left his mark on the law in numerous ways, too many to 25 recount in full here. His steadfast commitment to the Official Alderson Reporting Company 5 1 idea that external legal principles, rather than 2 internal policy preference, should govern judicial 3 decision making made him deeply respectful of the 4 Constitution’s allocation of powers and vigilant in 5 respecting legal texts. 6 That commitment showed up first and most 7 often in his views on statutory interpretation. Justice 8 Scalia pressed the proposition that, when interpreting a 9 statutory text, judges must try to discern and enforce 10 the meanings of words enacted by Congress to express its 11 policies. 12 In his view, courts should never rewrite a 13 discernible statutory text to conform it to a law’s 14 unenacted legislative purposes. This new textualism had 15 an undeniable impact on the way the Court does business. 16 Just as Justice Scalia believed that courts 17 should do their best to honor a statute’s text, he 18 thought the same should be true for the Constitution. 19 As he saw it, the words of the Constitution bear the 20 same meaning today as they did when adopted, neither 21 diminished, nor augmented. He thus voted against 22 recognition of new rights that he believed lacked a 23 foundation in the Constitutional’s — Constitution’s 24 original meaning, resisting limitations on Democratic 25 self-government that he believed the people did not vote Official Alderson Reporting Company 6 1 to impose. At the same time, he insisted on unyielding 2 enforcement of those restrictions that he believed the 3 people did vote to impose in the text of the 4 Constitution. 5 By the end of Justice Scalia’s tenure, a 6 focus on the original public meaning of the 7 Constitution’s text had become, if not orthodoxy, a 8 thoroughly respectable and commonplace approach to 9 constitutional interpretation. His approach was perhaps 10 best illustrated in two particularly noteworthy 11 opinions: District of Columbia v. Heller, holding that 12 the Second Amendment protects an individual right to 13 keep and bear arms for self-defense, and Crawford v. 14 Washington, interpreting the Sixth Amendment’s 15 Confrontation Clause. 16 Although Justice Scalia may be best known 17 for his views on statutory and constitutional 18 interpretation, his first love was an area of 19 substantive law, constitutional structure, which shaped 20 his answers to the underlying questions that appear in 21 every case, who decides, and how. 22 Throughout his tenure, Justice Scalia sought 23 to honor the Constitution’s structure, its distinct 24 horizontal and vertical lines of power. He appreciated 25 that men and women were not angels, and that electing or Official Alderson Reporting Company 7 1 appointing them to government posts did not make it 2 otherwise. 3 Justice Scalia believed that by assigning 4 three distinct kinds of government power to three 5 distinct branches of government, the Constitution 6 prevented the concentration of government power in the 7 same hands. 8 Justice Scalia likewise regarded the 9 Constitution’s vertical separation of power, Federalism, 10 as a core feature of the Constitution’s structure that 11 needed to be preserved. He joined the Court’s 12 decisions, recognizing limits on Congress’s power to 13 regulate interstate commerce, and upholding the State’s 14 sovereign immunity from suit. In these areas, as in so 15 many others, Justice Scalia had a — profound effect on 16 the Court’s jurisprudence. 17 Of course, no account of Justice Scalia’s 18 contribution to this Court would be complete without 19 mentioning his remarkably clear and vivid writing, and 20 the inventive, memorable images sprinkled throughout. 21 The images were memorable precisely because they 22 captured the substance of the legal point the Justice 23 was making. Surely there was a separation of powers 24 problem with the creation of what he called a sort of 25 junior varsity Congress. And surely, there was a deep Official Alderson Reporting Company 8 1 flaw in a dormant Commerce Clause test that asked judges 2 to divine, as he put it, whether a particular line is 3 longer than a particular rock is heavy. 4 And while Justice Scalia’s writing 5 frequently left — leapt off the page, advocates before 6 the Court often confronted his tenacity and his wit long 7 before he unsheathed his pen. He peppered lawyers with 8 questions, sometimes posing 30 or 40 in a single 9 argument. And if he found an answer unsatisfactory, he 10 pursued the point through short, often flinty-minded, 11 follow-up inquiries. 12 Throughout his judicial career, Justice 13 Scalia maintained his collection — connection with the 14 law schools by accepting countless invitations to speak 15 with students and professors. 16 And, in one sense, he never really left 17 teaching. His classroom just got bigger. He often 18 thought of the audience of his opinions as today’s and 19 tomorrow’s law students, and he relished opportunities 20 to talk to students about his theories of judging and 21 about the many useful ways to use a law degree. 22 Justice Scalia’s productivity and many 23 contributions to the law could leave one with the 24 misimpression that he left little time for anything 25 else. And, of course, that was not so. This son of Official Alderson Reporting Company 9 1 Trenton and Queens became an avid hunter and fisherman. 2 He relished meals with friends and colleagues and law 3 clerks, often at the much-beloved A.V.’s, and usually 4 with an anchovy pizza and an occasional glass of red 5 wine. 6 He was an ever-present mentor to his many 7 law clerks. And, of course, he was deeply devoted to 8 his large and remarkably close family. 9 And through it all, the Justice did 10 everything in his brim-filled — brim-filled life with 11 unstinting vigor, curiosity, engagement, and a twinkle 12 in his eye. 13 Gathered here together, looking back at his 14 life, the members of the Bar of the Supreme Court 15 express our deepest respect for the late Justice Antonin 16 Scalia, our loss at his passing from this life, and our 17 enduring gratitude for the example he set in his life, 18 both within and beyond the law. 19 On behalf of the Bar of the Supreme Court, 20 it is my privilege to present the Court the resolutions 21 adopted today, so that the Attorney General may move 22 their inscription on the Court’s permanent record. 23 CHIEF JUSTICE ROBERTS: Thank you, General 24 Gershengorn. 25 The Court recognizes the Attorney General of Official Alderson Reporting Company 10 1 the United States. 2 GENERAL LYNCH: Mr. Chief Justice, and may 3 it please the Court: 4 The Bar of the Court met today to honor the 5 memory of Antonin G. Scalia, Associate Justice of the 6 Supreme Court from 1986 to 2016. 7 The passing of Justice Scalia has left an 8 enormous void in this courtroom and in the life of the 9 law throughout the United States. With his razor-sharp 10 brilliance and unmatched eloquence, Justice Scalia 11 transformed the way the jurists and lawyers approach the 12 law. He strode like a colossus through some of the most 13 important opinions, concurrences, and dissents of our 14 time, and he had a singular presence both in the 15 courtroom and on the page. 16 His penetrating questions at oral argument 17 did not merely seek to clarify minor nuances; they cut 18 to the heart of a position’s flaws. And his writing did 19 not merely state the law, it captivated all who treasure 20 memorable and radiant prose. 21 And even those who disagreed with Justice 22 Scalia could appreciate his inspired wordsmithing, like 23 his assertion that Congress does not hide elephants in 24 mouseholes or his contention that the rule of law 25 requires a law of rules. Official Alderson Reporting Company 11 1 Justice Scalia’s life was a quintessentially 2 American story. His father was a Sicilian immigrant who 3 came through Ellis Island as a teenager, earned a 4 doctorate from Columbia, and became a professor. His 5 mother was an elementary schoolteacher, herself the 6 daughter of Italian immigrants. 7 By all accounts, Justice Scalia’s talent was 8 obvious from a young age: From Xavier High School in 9 Manhattan to Georgetown, where he graduated first in his 10 class, to Harvard Law School, where he edited the 11 Harvard Law Review. He was a charismatic student who 12 loved to debate. That charisma and his love of the 13 clash of ideas would come to define him. 14 With these gifts, he could have gone 15 anywhere and done anything. He could have conquered the 16 worlds of commerce or found a home within the business 17 of the law. But rather than pursue material wealth in 18 the private sector, he chose the wealth of ideas to be 19 found in academia. And instead of seeking public 20 acclaim, he turned to public service. 21 Law students at the University of Virginia, 22 as well as the University of Chicago, Georgetown, and 23 Stanford, benefited from his rigorous intellectualism 24 and love of the law. And we at the Department of 25 Justice also benefited from his dedication to public Official Alderson Reporting Company 12 1 service. 2 From 1974 to 1977, he served as the head of 3 the Office of Legal Counsel at the Department of 4 Justice. The traits that would come to define Justice 5 Scalia’s judicial presence were apparent in that role as 6 he provided written opinions that showcased his 7 intellectual rigor, his sharp pen, and his independent 8 mind. 9 He was also known for his fierce support of 10 the independence of the Office of Legal Counsel and of 11 the Department, traditions we are proud to uphold. 12 Justice Scalia’s contributions to the 13 Supreme Court cannot be overstated. Countless pages 14 have been written about the textualist approach to 15 statutory interpretation he championed. In his three 16 decades on the bench, he succeeded in changing the very 17 way that lawyers and judges determine the meaning of 18 congressional enactments, and he fundamentally 19 transformed legal argument. As Justice Kagan noted in 20 her Scalia lecture at Harvard Law School, we’re all 21 textualists now. 22 Justice Scalia will also be remembered for 23 his robust interpretations of the protections that the 24 Constitution affords those who come in contact with the 25 criminal justice system. His Fourth Amendment and Sixth Official Alderson Reporting Company 13 1 Amendment decisions regarding searches, the right to a 2 jury trial, and the Confrontation Clause fundamentally 3 shaped the way law enforcement officers investigate 4 potential wrongdoing, and the way prosecutors put on 5 their cases. 6 The opinions are noteworthy for their 7 reliance on Justice Scalia’s originalist approach to 8 interpreting the Constitution, a philosophy that looks 9 backwards in order to look forward. It looks back to 10 the founding of this great nation in an effort to 11 understand the protections reserved in the Constitution, 12 and it looks forward to demand that we uphold these 13 protections despite changing times. 14 But Justice Scalia’s greatest legacy may be 15 that he brought unmatched conviction and enthusiasm to 16 his jurisprudence. In doing so, he elevated our 17 national legal discourse for all Americans. He 18 challenged even those who agreed with him, and he earned 19 the respect of those who did not. 20 Lawyers who appeared before Justice Scalia 21 found themselves compelled to clarify their positions 22 and to sharpen their arguments. Readers of Justice 23 Scalia’s opinions could not disregard the strength of 24 his reasoning and were forced to re-examine their own 25 convictions. Official Alderson Reporting Company 14 1 Justice Scalia knew that this was the point 2 of debate, and he also knew that debate was the essence 3 of democracy. For decades, he had an outsized role in 4 the debates over the meaning of our most fundamental 5 principles: principles of liberty, justice, and 6 equality. And because of the brilliance, the eloquence, 7 and the unique passion he brought to that debate, he 8 guaranteed that he will continue to shape it for decades 9 to come. 10 Mr. Chief Justice, on behalf of the lawyers 11 of this nation, and in particular, the members of this 12 Court’s Bar, I respectfully request that the resolutions 13 presented to you in honor of Antonin Scalia be accepted 14 by the Court and that they, together with the chronicle 15 of these proceedings, be ordered kept for all time in 16 the records of this Court. 17 CHIEF JUSTICE ROBERTS: Thank you, General 18 Lynch. Your request that the Bar resolutions be made 19 part of the permanent record of the Court is granted. 20 The Court extends to the members of the 21 Resolutions Committee, to the members of the 22 Arrangements Committee, and to the Chairman of today’s 23 meeting of the Bar our appreciation for the resolutions 24 adopted today. 25 Antonin Scalia was nominated to the U.S. Official Alderson Reporting Company 15 1 Court of Appeals for the D.C. Circuit by President 2 Reagan on July 15th, 1982. He joined that court on 3 August 17 that same year. And just four years later, 4 President Reagan nominated him to be our 103rd Supreme 5 Court Justice. 6 At the time of the White House announcement, 7 he was not well-known to the public. The press had to 8 ask Justice Scalia how to pronounce both his first and 9 last names. 10 (Laughter.) 11 CHIEF JUSTICE ROBERTS: Antonin Scalia was 12 confirmed on Constitution Day in 1986 by a vote of 98-0. 13 He took the oath of office as an Associate Justice of 14 this Court on September 26th, 1986. Today, every lawyer 15 and journalist in this country, and most other citizens 16 as well know how to pronounce Justice Antonin Scalia. 17 In nearly three decades on this Court, 18 Justice Scalia wrote, by our count, 282 opinions for the 19 Court, beginning with O’Connor v. United States, which 20 he announced exactly 30 years ago today, and ending with 21 Kansas v. Carr, which he announced on January 20 of this 22 year. 23 He was also known to write separately from 24 time to time — 25 (Laughter.) Official Alderson Reporting Company 16 1 CHIEF JUSTICE ROBERTS: — authoring more 2 than 300 concurrences and nearly as many dissents. He 3 served with 17 other Justices during his long tenure on 4 this Court. 5 You have already heard of Justice Scalia’s 6 extraordinary legacy. On matters of constitutional 7 interpretation, he championed the judicial philosophy of 8 originalism, a view that the Constitution means today 9 what it meant when it was adopted. He espoused this 10 approach in opinions, both for the Court and in dissent, 11 that are now a central feature of every law school’s 12 constitutional curriculum. 13 His opinions explaining our Constitution’s 14 structural constraints on governmental power are among 15 the most important intellectual contributions to the 16 study of liberty since The Federalist Papers. 17 Justice Scalia defended the president’s 18 power to appoint and remove executive officials, not to 19 aggrandize presidential power, but to maintain the 20 equilibrium between co-equal branches of government. He 21 insisted that Congress perform the duties within its 22 Constitutional charge and leave other matters alone, not 23 to manage the legislative process, but to promote 24 individual freedom through electoral accountability. 25 He approached the judicial branch with the Official Alderson Reporting Company 17 1 same rigor. Justice Scalia demanded that Federal courts 2 stay within their constitutionally prescribed role of 3 deciding only concrete cases and controversies. He did 4 so not to avoid difficult issues, but to ensure that 5 judges who are insulated from the political process 6 resolve only those matters within Article III’s grant of 7 judicial power. 8 Justice Scalia applied originalist scrutiny 9 to interpreting the Bill of Rights. His views were 10 especially influential with respect to the First 11 Amendment’s religion clauses, the Second Amendment’s 12 right to bear arms, and the Sixth Amendment’s 13 Confrontation Clause. He persuasively explained how the 14 guarantees set forth 225 years ago continue to provide 15 vital protections in our own age. Writing for the Court 16 in cases involving the Fourth Amendment, he demonstrated 17 how the centuries-old protections against unreasonable 18 searches and seizures reach contemporary police 19 investigatory tools, ranging from thermal imaging to 20 electronic tracking devices to drug-sniffing dogs. He 21 once commented that his opinions on the scope of 22 criminal law safeguards in the Bill of Rights should 23 make him the favorite Justice among criminal defendants 24 across the country. 25 (Laughter.) Official Alderson Reporting Company 18 1 CHIEF JUSTICE ROBERTS: Now, whether he 2 wrote for the Court or in dissent, Justice Scalia’s 3 incisive analysis and unforgettable prose compelled 4 jurists, lawyers, and citizens alike to think deeply 5 about the meaning of the compact that binds us. 6 Justice Scalia left an equally enduring mark 7 on statutory construction. His insistence on the 8 primacy of a statute’s text has enforced greater 9 discipline on the task of construction. As he 10 explained, reliance on the statutory text restrains 11 judicial discretion and thereby promotes democracy. 12 Although Justice Scalia was a keen legal 13 theorist, he was deeply concerned about the practical 14 workings of government, and that intense focus is 15 reflected in his contributions to administrative law. 16 He made enduring contributions to that field as a 17 teacher, scholar, and Chairman of the Administrative 18 Conference of the United States, even before he became a 19 judge. 20 Whatever the discipline, whatever the role, 21 Justice Scalia was committed to finding the right 22 answer. And once he had settled upon what was right, he 23 let the chips fall where they may, and cared not a whit 24 what others thought about it. 25 Justice Scalia’s voice is perhaps most Official Alderson Reporting Company 19 1 deeply missed in this very chamber. From his first day 2 on the bench, he was a vigorous participant in oral 3 argument. His insightful inquiries enlivened debate and 4 brought out the best in his colleagues and the attorneys 5 who appeared before him, on many occasions also 6 confirming that their best was not good enough. 7 (Laughter.) 8 CHIEF JUSTICE ROBERTS: Now, it would be a 9 stretch to say that there was never a dull moment in 10 this chamber — 11 (Laughter.) 12 CHIEF JUSTICE ROBERTS: — but often, just 13 when things were getting a bit soporific, counsel would 14 make some assertion that would trigger a reaction from 15 Justice Scalia, ranging from explosive to subtle, and 16 the game would be on. 17 His comments in this room also included 18 priceless sotto voce insights shared only with those 19 fortunate enough to sit beside him on the bench. 20 (Laughter.) 21 CHIEF JUSTICE ROBERTS: Justice Scalia was 22 not restrained in stating his views clearly and 23 forcefully, but he never ceased being our dear friend 24 and valued colleague. He wrestled with ideas, not 25 people, and he knew the difference. Official Alderson Reporting Company 20 1 He made our days warmer, livelier, and 2 happier. He sang loudest and best at our traditional 3 birthday celebrations. He raised his glass highest to 4 toast others’ happy occasions, and his rich laughter 5 filled our halls and our hearts. 6 Justice Scalia’s life reached far beyond the 7 law. He would never have said that the law was what was 8 most important to him. He was steadfast in his Roman 9 Catholic faith, and he was devoted beyond measure to his 10 beloved wife, Maureen, and the nine children they 11 raised. 12 On occasions such as this, speakers often 13 employ so many laudatory adjectives that the effect can 14 be to sow doubt rather than admiration. But no one who 15 knew Justice Scalia, however they viewed his work, would 16 dispute for a moment that he was patriotic, principled, 17 loyal, courageous, engaging, and brilliant. 18 Those of us on the Court will miss Nino, but 19 we will continue to feel his presence throughout this 20 building. Our ears will hear his voice in this 21 courtroom when advocates invoke his words searching for 22 powerful authority. Our minds will move to the measure 23 of his reason in our chambers when we study his 24 opinions. And our hearts will smile, even as our eyes 25 glisten, when we walk the halls and recall how happy we Official Alderson Reporting Company 21 1 were whenever we saw him rounding the corner. 2 (Whereupon, at 3:24 p.m., the Special 3 Session was concluded.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25