We think of the late Antonin Scalia as an East Coast fixture—born in New Jersey, raised in Queens, educated at Georgetown and Harvard, on the Supreme Court from 1986 until his unexpected death Saturday, and, before that, on the D.C. Court of Appeals.
But before grabbing a chance in 1982 to serve on the D.C. circuit—the top feeder to the Supreme Court—he was a law professor for five years, starting in 1977, at the University of Chicago Law School.
He came to Hyde Park with his wife, Maureen (nee McCarthy), a Radcliffe student whom he had met on a blind date in Cambridge while he was in law school. They married soon after his graduation in 1960. Also in tow were their children—they eventually had nine, five sons and four daughters. A devout Catholic, he called their method of birth control “Vatican roulette.”
To accommodate them all, Scalia bought a former fraternity house on Woodlawn Avenue
According to colleagues at Chicago, part of the attraction of moving his brood to Hyde Park was the 50 percent discount in tuition at the University of Chicago’s Lab School. (The Scalias then had seven children in Catholic school.) It was an important perk even though, his Chicago colleague Richard Epstein told me Monday, Scalia “had real ambivalence about the Lab School.” (Scalia himself graduated from Xavier Military Academy, a Jesuit school in lower Manhattan.)
Colleagues told me that Scalia always had his eye on a Washington job. Before coming to Chicago, he had been head of the Justice Department’s Office of Legal Counsel in the Ford administration, and, before that, had served Nixon as general counsel of the Office of Telecommunications Policy. Ultimately his plan was to serve on the Supreme Court. The stop in Chicago was necessitated by Jimmy Carter’s election in 1976. Scalia knew that Carter would never have appointed Scalia, a conservative Republican, to anything.
Geoffrey Stone, a professor at the law school since 1973, told me Sunday that Scalia, during his job interview, had given the impression that he planned to make his career in academia, so some were miffed when he took off for D.C. after only five years. “We hadn’t had that impression when we voted to hire him.” (He had earlier taught at the University of Virginia law school for four years, taking off a year to serve in the Nixon administration; while at Chicago, he spent one year at Stanford as a visiting professor. )
After Reagan, whom Scalia called “Ronnie,” was elected in 1980, it was just a matter of time before Scalia moved east. His eye on the top court, he declined Reagan’s 1982 offer to join the Chicago-based Seventh Circuit Court of Appeals, but he eagerly accepted the subsequent appointment to the U.S. Court of Appeals for D.C.
Epstein told me he was neither surprised nor disappointed by Scalia’s move. He was obviously a “political animal” who was “always thinking of government.” Epstein compares Scalia to another Chicago guy, Abner Mikva, who served with Scalia as a judge on that same appeals court that catapulted Scalia onto the highest court. Mikva was “never really a judge,” Epstein says. “He always had his eye on politics.”
In an essay Epstein posted yesterday on the Hoover Institution’s website, he recalls that Scalia “thought of his academic career only as a way station along the path to a political appointment or judicial nomination.” Scalia stayed away from administrative matters, Epstein told me, and was “never part of the law school’s inner circle.” While he obviously greatly admires Scalia and notes that he does not mean to sound critical, Epstein told me that Scalia was “using this place. He taught and worked, was a fine but not a great scholar.”
That said, Epstein and another former Chicago colleague, Cass Sunstein, place Scalia at the top of Supreme Court writers: “He was an excellent stylist,” says Epstein, who explains that when clerks write opinions, they tend toward “bland prose,” but not Scalia, who often took his own “pen to paper.” Epstein offers as his favorite Scalia quote—in the context of deciphering the meaning of a statute—that Congress does not “hide elephants in mouse holes.”
Sunstein, “a kid law professor” at U. of C. law prof, during Scalia’s time in Hyde Park, wrote after Scalia’s death that “with Oliver Wendell Holmes and Robert Jackson, he counts as one of the court’s three best writers.”
I asked Epstein, 72—whom I talked to from New York; he teaches at both Chicago and the law school at NYU—whether he was surprised at Scalia’s death. “I wasn’t shocked. You could see evidence of illness in pictures. He put on enormous weight. He was an up and down, hot and cold guy, passionate opinions.” He could be sunny and then “clouds would come down.” Epstein compares Scalia to Chicago’s Harold Washington, who as Chicago mayor died at his desk. Epstein said he always expected Scalia to “die with his boots on.”
The Scalias’ second child, Eugene, named for Scalia’s father, is a partner in the Washington, D.C., office of Gibson, Dunn & Crutcher and a graduate of the law school at which his father once taught. “He was an ace from the day he started,” Richard Epstein says, and became editor of the law review. Another son, Paul David, became a priest and, says Epstein, has said blessings at Federalist Society meetings. At Chicago, Scalia was the faculty advisor to the conservative group and in 1982 “played a central role in its national founding.” (Chicago’s was among the first of three chapters at American law schools.)
Scalia, who taught constitutional and administrative law and favored the Socratic method, could, Epstein says, be intimidating in the classroom. “If he felt his students were unprepared, he would simply walk out.” Geoff Stone recalls that Scalia could show “intemperateness in the classroom that we see in his opinions, and he could get impatient with people, particularly with students who persisted in challenging what he considered the right way of thinking about issues.”
Scalia was also remembered for partaking in monthly faculty poker games. Geoff Stone has recalled Scalia wearing an old fishing hat to games. Stone, a regular at the poker table, told me that whenever it was Scalia’s turn to deal, he would make up odd games such as ordering players to stick a card on their foreheads so others could see it but they could not. “You always knew that Nino [he was called that by friends, family, colleagues] would be up to something.”
On a visit back to the law school in 2012, Scalia talked about taking the tradition of the monthly game to the Supreme Court: He said the bets were “penny-ante, adjusted for inflation. … I keep telling my wife that it evens out.”
His favorite among the newer members of the court was liberal former Harvard Law School Dean Elena Kagan, whom Scalia was teaching to shoot—he took her to shooting ranges—and to hunt. Over the weekend, David Axelrod told the story of Scalia whispering to him that he should push his boss, President Obama, to appoint Kagan to the court because she’s smart. According to Axelrod, Scalia told him “I hope he sends us Elena Kagan.”
Scalia was apparently never able to persuade Ruth Ginsburg, who recalled that she and Nino were “best buddies,” to join his hunting party, but he was with her when she went parasailing. He told U of C law students during his 2012 lecture: “I have a wonderful picture at home of me and Ruth Bader Ginsburg on the back of an elephant, led by a guy in a turban. Ruth is an incredible lady. We taught some summers together in Nice, and she went parasailing! You know, I’m surprised she ever came down—she’s so light. I wouldn’t go parasailing—are you crazy? So I’m pretty sure the elephant ride was Ruth’s idea.”
And it was during that 2012 that Scalia paid tribute to the law school’s influence on him and on his judicial philosophy: “A whole lot of what I am intellectually is attributable to this place. The University of Chicago is one of two or three of the most formidable intellectual institutions in the world; a really impressive place. You’re lucky to be here.”
For attorneys who have tangled with Scalia during oral arguments at the court or for his liberal colleagues on the court, they may have wished that Scalia had skipped his five years at the University of Chicago Law School.