Patrick B. McGuigan
Today is Ash Wednesday.
Words associated with it are as meaningful as all words in Scripture. When the faithful gather to receive the remains of burnt Palms, we are reminded, “Remember that you are dust, and unto dust you shall return.” These are solemn words, worth hearing.
In the earthly arena, I still have this idea that both words and ideas matter, and common ground can be forged in matters of legislation and judicial interpretation. Humans come and go, but ideas like “Congress shall make no law …” should be buttressed, every generation.
Whether in legal interpretation or Scriptural exegesis, in literary analysis or daily discourse, words have meaning. American conservatism is rooted in respect for those who fashioned a limited government, separated powers and Federalist diffusion of authority.
Pondering the U.S. Constitution and its relevance leads to critical scrutiny of the Supreme Court and its role — good and bad, progressive and retrograde, conservative and non-interpretive.
In the modern era, such reflections lead to memories of the late Justice William Brennan and to senior Justice Antonin Scalia, who died in 2016. Their conflicts distill the current debate over the future of constitutional jurisprudence.
Generally a “conservative,” Scalia nonetheless was on the “wrong” side of a few cases over the years. The flag burning case of 1989 – in which he joined the majority finding flag burning a form of protected speech – was one of his rare errors.
On the big stuff, Brennan and Scalia were usually in opposition during the four years they over-lapped, yet Scalia called him “probably the most influential justice” of the Twentieth Century.
Generally a “liberal,” Brennan’s ardent belief in free speech led him to favor Massachusetts Citizens for Life in one of the important political speech cases of the late 1980s. And, his reasoning for freedom of association led him to write the Beck decision that defended the rights of conservative dissenters in labor unions.
They fought like brothers, and their personal relationship might hint at a way forward for a deeply divided nation, including in the polarized arena of constitutional jurisprudence.
On an Ash Wednesday in the late 1980s, shortly before noon I was trotting toward St. Joseph’s on Second Street, N.E., on the Senate side of Capitol Hill in the nation’s capitol.
Like many others who resided in Virginia or Maryland but worked on the Hill, for the start of Lent we were honorary parishioners there (or at St. Peter’s on the House side).
After years of Holy Day Mass-going at St. Joe’s I expected a reverent, proper yet expedited liturgy, leaving attendees time to grab something to eat within the noon hour, and, a plea from the pastor. Ash Wednesday services were his highest attendance of the year – and, not incidentally, the highest cash collection at any Mass.
As I neared the old church, I saw moving slowly up the front steps two men I knew. Walking slowly — his right hand on the middle rail, and his left hand extended to his companion — was William Brennan, the liberal legend whose judicial philosophy I’d spent the last few years opposing. He was getting feeble and moved carefully.
Standing to the left, on the elder justice’s left as Brennan clutched his cane, was Antonin Scalia, walking patiently and solicitously. When they got to the top step, Brennan switched the cane to his right hand. “Nino,” with his left hand, clasped the old man’s left hand, placing his right hand gently around Brennan’s lower back.
The pair walked into the Church, then three-quarters full. They moved slowly past the priest and servers, down the center aisle to a pew at the front left, where they sat. The priest then nodded to his servers and looked to the organist, and Holy Mass began.
After the Gospel, the pastor gave his annual plea, and offering baskets filled with bills. At distribution of Ashes, and then for Communion, Scalia took the old man’s hand, put his right hand under Brennan’s armpit, to rise and move toward the altar, side by side.
After Mass, they prayed for a bit, then arose to make their way out the door and down the street for the brief walk to the Supreme Court.
Brennan was the only justice who always replied with a personal note when he received copies of my legal books. He assured me he would consult my words as he grappled with cases. I knew he would often disagree with me – and with Scalia, who had joined the Court in 1986. Still, words mean a lot.
And now, walking 24/7 with a cane, I’m the guy who needs help on stairs.
A few years after I watched them at Mass, on at trip back to my old haunts and just some months after Brennan retired, I saw Scalia briefly at an event. Curious, I asked, “Why did Bill leave?” His visage tender, Scalia replied, “Pat, I think Bill just got tired.”
We all get tired, and eventually comes that passage into … Eternity, and what comes next.
I often think of Bill and of “Nino” – the justice I most admired in the late 1980s. In more recent few years, Nino in my cumulative estimation, fell narrowly behind Clarence Thomas, who joined the Court in 1991, as my favorite. And yet, I disagree from time to time with both of my justice-heroes.
Nino has gone ahead. I want to think he has already had a talk with his friend and frequent sparring partner, Bill Brennan.
Guys like Scalia and me, and our kindred spirit the late Robert Bork, honor the Constitution as a rule book – not as “lodestar of our aspirations,” as Brennan memorably said.
That’s still a necessary fight – with rules of respect, civility and decency to each other along the way.
NOTE: This essay first appeared on Ash Wednesday, February 13, 2013. It was revised slightly in 2016, and again for this posting on February 26, 2020. McGuigan is the co-author, with Dawn M. Weyrich, of “Ninth Justice: The Fight for Bork” (University Press of America/Free Congress Foundation, 1990).