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Nino and me

February 18th, 2016  |  Lisa Milam-Perez

By Lisa Milam-Perez, J.D.

Ah, I admit it. Justice Scalia’s passing has saddened me.

Nino first stirred my passions in law school with those magnificent dissents. I relished the reasoning, the language, the snark, even as I disagreed so vehemently with the premise, the politics. Plus, he was a character. So bombastic, so brazen, so Italian. I was smitten. I’ve always had a weakness for the bad boy, I’d say, in a sheepish effort to justify my misplaced ardor. Friends would excoriate me, plead with me, try to talk sense into me. “You just don’t know him like I do.”

I visited the Supreme Court in 1998. By sheer coincidence, it was oral argument day in Faragher and Ellerth. Of course, these two gigantic sexual harassment cases drew tremendous attention at the time, and an unwieldy throng descended upon the High Court that day. Consequently, visitors were shuffled into the viewing chambers for mere two-minute stints, then out. My husband laughed, bemused, as I strained my neck for at least a passing glimpse of my beloved Nino.

Two years later, Bush v. Gore threw cold water on the romance. It was the first High Court ruling in my lifetime in which I was viscerally present, deeply conscious of the real-life consequences of the lofty opinions emanating from those hallowed halls. Their words can devastate, no matter how artful their prose. I’m far more jaded now. And, frankly, Nino turned more truculent, cranky, and out of touch. He was bad for me, I knew. Bad for America, as I saw it.

Occasionally thereafter, though, I’d read one of his biting dissents and smile, laugh, enjoy a passing twinge of remembrance. Yes, what we once had …

I remembered anew as I read the statement issued by Justice Ginsburg, one of the Court’s staunchest progressives, of course and, famously, one of Justice Scalia’s closest friends:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots—the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp.

Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as working colleague and treasured friend.

Everyone has moved on, focused now on the political machinations that follow his death and, closer to home, contemplating the labor and employment implications. Here are two particularly astute analyses:

As for me? I’ll take solace in Justice Kagan’s dissents; she seems to be emerging as Justice Scalia’s rhetorical, if not philosophical successor. Aside from a few disheartening positions in wage-hour cases, though, the romantic tension of strenuously opposing viewpoints just isn’t there. Sigh. But regardless of who will replace Justice Scalia—and when—the Supreme Court will be a far less entertaining place to visit.

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