Justice Scalia and the ACLU Leader
It was 1994. I was at the Supreme Court to receive the Supreme Court Historical Society's award for scholarly writing about the Court. I was also in my 15th year on the American Civil Liberties Union's board of directors. Cases like Citizens United and the gun regulations decisions were still in the future, and so was the vitriolic language Justice Scalia used later in life, but his votes and his opinions had already made it clear that he and the ACLU saw the Constitution quite differently. Homosexual rights, affirmative action, reproductive freedom, the death penalty for juveniles: just a few areas of serious disagreement.
So I went to the Court prepared to meet an ogre. I had heard that Justice Scalia was delightful in person but I very much doubted that I would be charmed.
And yet I was. Justice Scalia's father had taught at Brooklyn College and I had been on its faculty since 1972, so we had at least that in common. We chatted briefly about inconsequential things, he laughed and smiled and seemed to listen intently, and I was indeed charmed.
Our next meeting was not as fortuitous. I was writing a book about a 1996 case that involved the refusal of the Virginia Military Institute, a state-funded college, to accept applications from women. The Supreme Court in effect decided that VMI had to open its doors to all qualified students. Justice Ruth Bader Ginsburg, writing for the Court, drew on the precedents she had set back in the 1970s when she was on the other side of the bench arguing gender equality cases. In doing so, she established a high threshold for any governmental action permitting gender discrimination.
Justice Scalia was the sole dissenter in the case (Justice Clarence Thomas recused himself because his son was a student at VMI). He didn't like the new test of gender discrimination and he accepted Virginia's argument that women could not hack VMI's physically demanding regime. That didn't charm me but, as a scholar, I did want to interview him. I had already spoken about the case with Justice Ginsburg.
He was known for his reluctance to grant such interviews and perhaps it was a word from Justice Ginsburg that persuaded him to see me; I'll probably never know. In any event, he made it clear from the moment I walked into his chambers that he was not happy that I was there. By then I was the ACLU's national secretary. He of course expected me to view the VMI decision favorably, and he was right. The famous Scalia charm was not in evidence as he curtly reiterated the view he had taken in dissent. The interview was very brief. As a courtesy, I sent him a copy of the book when it came out. He did not respond.
That, I assumed, would be my last interaction with Justice Scalia, but it wasn't. In 2014, the Supreme Court Historical Society invited me to give a lecture in the courtroom about the people behind a 1946 Mexican-American school desegregation case (Mendez v. Westminster).
Anyone giving such a lecture is hosted by one of the justices of the Supreme Court. I don't know what led the Historical Society to choose Justice Scalia as my host but it did, and so on the afternoon of the lecture I was invited to his chambers for the usual pre-event chat. By that time I was an ACLU vice-president. My earlier dismay at the justice's jurisprudence had multiplied exponentially, as since our last encounter he had written one opinion after another whacking away at many of the things that I and my colleagues believed in as passionately as he did not. But it was a time for politeness, not an ideological debate; after all, he was being gracious in hosting me. I could only hope that, given the brevity of our less than cordial interview about VMI, he didn't remember me.
We once again chatted inconsequentially until he said, "You know, it really should be Justice Ginsburg who introduces you tonight." "Why is that?" I queried, although I knew the answer. "Because she cares so much about women's rights," he replied. Unable to resist, I asked not-so-innocently, "But don't you care about women's rights, Justice Scalia?" "Not as much as she does," came the amused rejoinder. Next he turned to my 37-year-old son, who had accompanied me, and commented, "Your mother is a strong woman." "Yeah," my son replied, with a "You don't know the half of it" expression on his face.
Then it was time to go down to the courtroom. Justice Scalia was generous in introducing me and at one point, talking about my scholarly work, he mentioned the VMI book. His timing was impeccable. He paused for a beat before noting, with a big grin, "Of course, I dissented in that case." The audience laughed, and he winked at me. It appeared he did remember.
And once again, I was charmed.
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