Supreme Wordsmith

Antonin Scalia’s former law clerk remembers the justice for his pen as much as his gavel.
Writer: 
August 8, 2016

Even his detractors acknowledge that few justices ever have approached the clear, powerful, and evocative writing style that the opinions of the late Justice Antonin Scalia consistently typified.

Scalia wasn’t merely a craftsman; he truly loved words. He reveled in the nuance of their meanings, sought out their exact contours and origins, and ruminated on how best to link them together. He delighted in replacing perfectly good words with others that were just a bit better, more precise. Genuine exultation came from replacing an entire phrase, already tightly written, with a single word that better conveyed his desired meaning. 

In the year I spent working in Scalia’s chambers, I came to understand that he loved words not just for their utility but also for their beauty. In the midst of discussing a pending case, he often would quote a poem or a particularly apt line from literature, foreign or domestic. Once, I heard him quoting (in French) a line from Voltaire’s Candide—and it cut to the very heart of the argument he was making. 

To be clear, it wasn’t fancy words that Scalia liked or found beautiful. He didn’t collect rare specimens to display his vast knowledge, wearing them as a general wears his medals. He instead valued the right word, preferably one with a little panache. 

For instance, the word “jiggery-pokery” goes back hundreds of years. Webster’s Second—the dictionary he found authoritative, and on which we Scalia clerks still rely—defines it as “sham; humbug.” Even without knowing its history or meaning, no reader needed a dictionary when Scalia derided the majority’s “interpretive jiggery-pokery” in King v. Burwell, one of the Affordable Care Act decisions. 

Equally in United States v. Windsor, where he, in dissent, argued for the Defense of Marriage Act. “[W]hatever disappearing trail of [the majority’s] legalistic argle-bargle one chooses to follow,” Scalia wrote, the real rationale was quite different. Any doubt about what “argle-bargle” meant?

And perhaps Scalia’s most famous bon mot came in his dissent in Morrison v. Olson with the phrase “this wolf comes as a wolf.” Just six one-syllable words that efficiently, clearly, and memorably convey a complicated viewpoint: that while previous lawlessness at least had been cloaked in the garb of legality (per Scalia, like a wolf arriving “in sheep’s clothing”), what the Court blessed in Morrison was far worse—undisguised lawlessness. 

One of the best (and scariest) parts of working for Scalia was the certainty that he would be unsparing with a clerk who proposed cumbersome or clunky language for an opinion. “The Booking” was a prime opportunity for instruction. It was so named because, before sending a draft beyond the Scalia chambers, the clerk would wheel in a library cart containing every authority cited in a draft. The justice and the law clerk would sit down together, each with a copy of the draft in hand, to examine it word by word, pulling each book off the cart as each citation arose.

My first booking was terrifying because I had not understood the intensity the justice brought to the experience. Nothing was sacred. Every word had to be accurate, it had to legitimately advance the reasoning that the opinion sought to convey, and it had to form both the most efficient and the most pleasing linguistic way of achieving those goals. About five minutes in, I realized what I had envisioned as a kind of casual dress rehearsal was, to the justice, more like opening night on Broadway. I felt grossly unprepared and almost physically ill. The next several hours—a booking in small cases took that long and could span multiple days for more extended opinions—were among the most stressful of my life, as with each passing sentence I feared that some inadvertent but colossal error (and thus my own incompetence) would be exposed. I was lucky: My mistakes in that first booking were relatively minor.

I’ve taught Federal Courts at the University of Texas School of Law for several years now, and a large number of students (often adding the obligatory disclaimer that they “didn’t always agree with him”) have noted that Scalia was the most important justice of their entire law-school careers—the justice whose opinions they would seek out to really understand what a case was about. But whether they realize it or not, those students are learning more from Scalia than just legal doctrine. They are soaking up more powerful ways to use the lawyer’s only real tool—words.

Young ’99 is a partner at Baker Botts L.L.P., where he is chair of the Austin office’s litigation department. He clerked for Justice Antonin Scalia in the 2005-06 term.