If any lawyers you happen to see this coming week look a bit more depressed than usual, it may be due, at least in part, to the unexpected passing of Supreme Court Associate Justice Antonin Scalia. His sudden death was especially jarring for all of us who have ever experienced the completely unanticipated loss of a friend or loved one.
The pride of Trenton, New Jersey passed away at age 79 while on vacation in Texas. He was a government lawyer for President Richard Nixon, and was subsequently appointed to the U.S. Court of Appeals. What’s the old joke…the definition of “federal judge” is a lawyer who knows a senator? From there, President Ronald Reagan appointed him to the High Court in 1986.
Justice Scalia and Tax Law
Justice Scalia was not a tax lawyer, so his writings on the subject are somewhat scarce. But, that doesn’t mean he didn’t have anything to say. In fact, one of his more memorable recent dissents was in King v. Burwell, a tax case that upheld key portions of the Affordable Care Act. The Justices considered the case amid a political firestorm, as “repeal Obamacare” is becoming a campaign rallying cry that may one day rival William Harrison’s “Tippecanoe and Tyler Too” or Woodrow Wilson’s somewhat hollow “He Kept Us Out of War.”
Justice Scalia came out with both guns blazing, declaring the majority opinion to be “interpretive jiggery-pokery” and further opining that the ACA should be re-nicknamed “SCOTUScare.” His conclusion was classic Scalia: “The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers.’”
He was certainly no fan of federal power or government taxes. About a year earlier, when speaking at the University of Tennessee, Justice Scalia told a group of law students that the income tax was constitutional and, if their taxes got too high, they should consider revolting against the U.S. government. The remark appeared to be tongue-n-cheek, but with Justice Scalia, you never really could tell.
In addition to his dissent in King, some of Justice Scalia’s more memorable tax law opinions were:
Kelo v. New London (2005), a dissent that spoke out against eminent domain,
A dissent in Wynne v. Maryland (2014), the interstate commerce case from last term, and
The majority opinion in Atlantic Mutual Insurance Co. v. Commissioner of Internal Revenue, a 1998 case that upheld many of the 1986 Tax Code reforms.
As memorable as his writings are, twenty years from now, or maybe even twenty minutes from now, they will be largely forgotten. But his contributions will be remembered.
In Chapter 3 of the Revelation, God chides the church in Laodicea for being “lukewarm” and “neither hot nor cold.” The idea is that a lack of passion is an organization’s undoing. Strong feelings, even if they are misdirected, are always a good thing, as long as these feelings are premised on solid ground.
Justice Scalia was one of the most ardent defenders of originalism the Court has ever known. That view espouses that the Constitution means what it says and says what it means, and woe be unto them who dare suggest that the document is “organic” or adapts to the times.
Reasonable minds differ as to whether that idea is gospel or malarkey or somewhere in between. But perhaps because of his New Joisey roots, Justice Scalia was passionate about this philosophy in a way that is almost unheard of. We would do well to imitate this example in our own lives.
There are a number of law firms, and perhaps even most, that abhor hiring “baby lawyers.” Recent law school graduates are considered a time suck at best, and a potential liability at worst. There is also a subtle bit of professional jealousy, because no one wants to be upstaged by an upstart.
Although I cannot say this from experience, it is a very safe bet that your workplace may be much the same.
When Justice Clarence Thomas joined the Supremes in 1991, he and Justice Scalia had very little in common. But perhaps because he had just been through one of the most grueling confirmation hearings in Court history, Justice Scalia took Justice Thomas under his wing. At first, some critics chided Justice Thomas for being little more than the Bucky to Scalia’s Captain America.
But eventually, according to some Court observers, Justice Thomas’ opinions, both in majority and in dissent, rivaled Justice Scalia’s work in terms of research quality and conservative argumentation. Once again, reasonable minds differ as to whether this was a good thing or not. But Justice Thomas is a force on the Court today because of Justice Scalia’s influence. Once again, we would do well to follow this example.
James Clark McReynolds is remembered as one of the most disagreeable lawyers to ever enter the stately manor at 1 First Street Northeast, and that is saying a lot.
The aforementioned Princeton expat appointed McReynolds to the Supreme Court in 1914, largely to get the curmudgeonly New York lawyer out of his cabinet. For years, the notorious anti-Semite refused to speak with Louis Brandeis, sign any document that bore his name, or stand next to him during the annual Court photograph. Moreover, during Benjamin Cardozo’s swearing-in, Justice McReynolds flagrantly read a newspaper and muttered “another one” to anyone within earshot.
That may be passion, but it is passion without purpose. Hate never built anything, and it never will.
Not so for Justice Scalia and fellow Associate Justice Ruth Bader Ginsburg. The Federalist Society founder and former ACLU lawyer had little in common, but maintained a famously collegial relationship. They spent every New Year’s Eve together. They rode an elephant together during a 1994 hunting trip to India. She called him “Nino.” For his part, when asked about their unlikely friendship, Justice Scalia quipped “What’s not to like? Except her views on the law.”
If an online poll accompanied this post, every single respondent could name at least one person that he or she despises, perhaps with good reason. No one is asking that we be best friends with everyone, but it is not too much to ask that we make an effort.
Life is Beautiful
If we live each day with passion and a spirit of collegiality, while taking a few moments to mentor someone else, it is a day well spent. We will miss you, Justice Scalia. But not because of your thoughts on originalism. We will miss you because of what you taught us about life and lawyering.