New York Times

Scalia Remembered at Memorial as the Supreme Court’s Happy Combatant

March 3, 2016

by Adam Liptak

WASHINGTON — Justice Clarence Thomas paid tribute on Tuesday to “Brother Nino” at a memorial service for Justice Antonin Scalia at the Mayflower Hotel attended by all eight remaining members of the Supreme Court.

So did Justice Ruth Bader Ginsburg, Justice Scalia’s frequent judicial adversary and best friend on the court.

“He was once asked how we could be friends given our disagreements on lots of things,” she said. “Justice Scalia answered: ‘I attack ideas. I don’t attack people. Some very good people have some very bad ideas.’”

Justices, clerks and four of Justice Scalia’s nine children recalled a happy combatant, in love with law and the power of words, a man of deep Roman Catholic faith, a demanding but loving father and a driver best avoided.

Justice Scalia, who died Feb. 13 at age 79, was awfully proud of some of the hundreds of opinions he wrote in his 30 years on the court, Justice Thomas said.

“‘Clarence, you have got to hear this,’” Justice Thomas recalled him saying. “‘This is really good.’”

“Whereupon,” Justice Thomas continued, “he would deliver a dramatic reading, after fumbling with his computer for a while.”

But once, Justice Scalia was harshly critical of an important precedent. “‘Just a horrible opinion,’ he said. ‘One of the worst,’” Justice Thomas related. It fell to Justice Thomas to break the bad news: “Nino, you wrote it.”

Justice Thomas, who on Monday asked his first question from the bench in over a decade, said he had loved sitting between Justice Scalia and “our friend Steve Breyer.”

“I loved the back and forth that took place,” Justice Thomas said, “especially the passing of notes from Steve to Nino and Nino to Steve.”

Justice Scalia would mutter remarks and solicit comments during arguments, leaning far back in his chair for private communication. “He would say, ‘Brother Clarence, what do you think?’” Justice Thomas said.

The two men comforted each other when they encountered setbacks. “There were many buck-each-other-up visits,” Justice Thomas said. “Too many to count.”

“We developed an unbreakable bond of trust and deep affection,” Justice Thomas said with emotion near the end of his remarks. “God bless you, Brother Nino.”

Justice Ginsburg also described a warm friendship that included a shared love of opera, roses on her birthday and late-night calls to her chambers urging her to stop working and head home.

Justice Scalia could be simultaneously courteous and cutting. She recalled, for instance, receiving a preliminary draft of Justice Scalia’s dissent from her majority opinion in United States v. Virginia, the 1996 decision that required the Virginia Military Institute to accept women.

He had wanted to give her as much time as he could to let her respond.

“It was a zinger,” she said of the dissent. “It took me to task on things large and small.”

“I was glad to have the extra days to adjust the court’s opinion,” she said. “My final draft was much improved thanks to Justice Scalia’s searing criticism.”

The two had worked together as federal appeals court judges. In 1993, when President Bill Clinton was deciding on a nominee to replace Justice Byron White, Justice Scalia was asked whether he would prefer that his new colleague on the Supreme Court be Laurence H. Tribe, the Harvard Law professor, or Mario Cuomo, the governor of New York.

“Justice Scalia answered quickly and distinctly: Ruth Bader Ginsburg,” Justice Ginsburg said at Tuesday’s service, beaming. (She got the job.)

Prof. John F. Manning, a former law clerk who now teaches law at Harvard, said Justice Scalia welcomed debate and disagreement in his chambers, to a point. “When one of us got a little overinvested, he had to say, ‘Hey, remember, it’s my name that has to go on the opinion,’” Professor Manning said. “And especially with me, for some reason, this was often followed by the further observation, ‘And I am not a nut.’”

Like other speakers, Justice Joan L. Larsen of the Michigan Supreme Court, another former law clerk, described a cheerful soul.

“The justice was fundamentally a happy man,” she said. “He sang in his chambers. He whistled in the corridors. His sonorous laugh reverberated throughout the courtroom.

“His wit was sharp, and he delighted in testing it against anyone who was foolish enough to try.”