Scalia’s last public appearance in Mississippi took place on the Ole Miss campus on a wet Monday morning, December 15, 2014. This return visit and colloquy involved a new twist to his perennial traveling show. To the delight of the attendees packed in the Ford Center, the longest currently serving Justice lugged along the then-fifty-four-year-old “Junior Justice” Elena Kagan. The relatively young, female, liberal, intelligent, Jewish, New York-raised, former Harvard Law Dean, and Obama appointee also planned to duck hunt with her close friend and fellow justice while in Mississippi.
Justices Scalia and Kagan – seated on the same stage where Coach Hugh Freeze was introduced as Ole Miss’ head football coach – entertained the crowd. The seventy minute “conversation” was worth attending just to hear Scalia deliver the line: “I hate good losers. I used to play tennis with a good loser and it was hardly worth beating him.”
My first of four sightings of Justice Antonin Scalia dates back to 1993, when he first spoke at Ole Miss. Picture the 5’7” justice ludicrously holding his arms in the shape of an “A” over his ample head. “Abortion,” he unabashedly lectured the assembled, “is not in the U.S. Constitution.” My recollection is he blasted the liberals who found it expedient to “breathe” previously unheard of provisions into a “living” constitution through imagination and the late 20th century “penumbra” contrivance. The apposite methodology, the former law professor patiently instructed, was the time-honored democratic process of amendment – something contemplated in the Constitution, attempted thirty-three times, and achieved twenty-seven times. Scalia advocated textualism and originalism as the bases for interpreting the law.
My only one-on-one encounter with Justice Scalia occurred in the old Ole Miss Alumni Cafeteria where the self-described Italian was enjoying a solitary, peaceful and until then uninterrupted prima colazione. As we are all prone to do in the presence of royalty, I fawned all over him and complimented him profusely on his brilliant opinions, only a few of which I had read in their entirety. He quipped that his writings were more appropriately described as dissenting opinions.
I have a favorite Kagan and Scalia story. In 2009, President Obama appointed Kagan to serve as the nation’s first female U.S. Solicitor General – the attorney charged with representing the U.S. government in all cases before the U.S. Supreme Court. Kagan, for all her intellect and legal acumen, was not an appellate attorney and had never argued a case before the Supremes. Her first argument before the high court, a major loss for her, occurred on September 9, 2009, in what would result in the important and polarizing First Amendment opinion, Citizens United v. FEC, which struck federal legislation used to restrain political free speech. Using high school civics logic, the 5-4 majority stated in its 2010 opinion: “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” Scalia was in the majority.
The media and liberals went crazy over the ruling and President Obama, a former Senior Lecturer on constitutional law at the University of Chicago Law School, caterwauled, “This ruling strikes at our democracy itself.” Lost in the hyperbole, as usual, were the underlying facts. The FEC, a government agency, had prohibited a conservative group from airing an unflattering film entitled Hillary: the Movie about then-U.S. Sen. Hillary Clinton. This all, of course, in a country where any idiot can – under the guise of free speech – burn an American flag, prominently fly a Nazi flag in her front yard, or publish a white supremacy novella. It is, after all, freedom of speech. Not just speech we don’t like, but especially speech we don’t like.
Just five days before their 2014 appearance in Oxford, the sage but intrepid Senior Justice granted an interview with Radio Television Suisse. The old issue of campaign finance – the subject of the case that Solicitor General Kagan lost – came up. Scalia, knowing full well he would be joining Kagan in Mississippi the following week where she would be exercising her Second Amendment right to bear arms, rejoined “the amount of money that is spent on all elections — state, local and federal — in the United States, is less than what women spend on cosmetics for a year, OK?”
Two Deputy U.S. Marshals blocked me from getting too close to the pair of Justices that Monday morning in Oxford, but I’m certain Kagan was wearing makeup.
Despite opposing views expressed in scathing dissents, the opinionated and verbose Justice Antonin Scalia cultivated and maintained deep friendships with ideological opposites, including the gifted Associate Justices Kagan and Ginsburg. As Scalia was known to say, and repeated at Ole Miss: “If you can’t disagree on the law without taking it personally, find another day job.”
» Ben Williams is a Jackson, Mississippi attorney. Email him at MBWJ@aol.com.