Lunch with Justice Scalia: A Liberal Artist Meets a Conservative Judge for Lunch by Sara Kellner
A Liberal Artist Meets a Conservative Judge for Lunch
By Sara Kellner Copyright 2018
October 18, 2018
1458 words
During the time of the infamous “NEA 4” trial, I was the visual arts director at Hallwalls Contemporary Arts Center and the president of the National Association of Artists Organizations (NAAO), the amicus curiae in the case. These were the culture war years. These were the days of Piss Christ being debated on the Senate floor and the Robert Mapplethorpe trial in Cincinnati. These were the days that led to the elimination of NEA grants to individual artists. I was 27 years old at the time, one of the younger culture warriors.
I drove to Washington, D.C. to attend the trial in my non-air-conditioned brown car with my boss, Hallwalls’ Executive Director Edmund Cardoni. The weeks leading up to the trial had been filled with phone calls and briefings from our lawyer, David D. Cole, and NAAO Director Roberto Bedoya. I had never been to the Supreme Court before and was humbled to be in the place that I only knew from Nina Totenberg’s descriptions on NPR. Performance artist and co-plaintiff Karen Finley was trying to get a place to sit in the front row. The rest of us just sat-dressed in our best clothes-and watched the discussion unfold that day of March 31, 1998.
All these years later, I don’t remember exactly what transpired in the courtroom. I do remember noting the stance of Seth P. Waxman, the lawyer for the NEA. This was a man holding a delicate balance of addressing the facts of the case and saving the NEA. Afterwards, we all gathered in the portico. It was a beautiful spring day. The weather was much better than in Buffalo, New York, where I lived.
So, we waited for the outcome. On June 25, I got the call that the decision was made. We lost. The NEA would add language to their guidelines which meant the Chairperson might consider “general standards of decency” when it came to make a final funding decision. I stood over the fax machine watching the long roll of fax paper pour out onto the floor with the entire opinion. We lost. I gathered the opinion in my arms, folded it, and started to read.
What captured me most was Justice Scalia’s separate opinion. Brilliantly written. Scathing. Infuriating. Outrageous. Who is this guy? How could anyone understand so little about art and artists? I wanted to know. So, I took the next step. I wrote him a letter, telling him who I was and my role in the case, and asked him to lunch followed by a visit to a museum. I put the letter in the mail and forgot about it.
A month later I was going through my mail and there was a letter from the Supreme Court. A reply. I opened it. Justice Scalia accepted my invitation to lunch, writing that he wanted to “meet the only person in the arts community who both read my separate opinion in Finley and was not enraged by it. Thursday, August 27 would be a good day for me.” To say I freaked out is an understatement. To say everyone around me freaked out is also an understatement. It was a giant chorus of “Holy (add four letter word here!)”
I immediately called Justice Scalia’s secretary to settle another date. I could not afford to pay for a plane ticket and asked if we could have lunch on a day I would already be in D.C. for a meeting.
Thus ensued four weeks of preparation. I re-read the Federalist Papers and the Constitution for the first time since high school. A lawyer friend helped me go through some Supreme Court cases and study up on Justice Scalia’s opinions. (I figured I needed to at least have a few conversation starters based on what he had been working on.) Another lawyer friend called all his buddies in D.C. to help me figure out what restaurant to go to. After weeks of debate, they reported back that they could not agree on a place, nor provide a shortlist of options.
At that point I phoned Justice Scalia’s secretary and asked if I could meet him at the courthouse because I did not know what restaurant to invite him to.
The day before the lunch, I drove back to D.C. I think I crashed on a friend’s couch. I arrived at the court an hour early to make sure I would be on time. It was a steamy hot September day. I sat outside the Capitol on a bench trying not to sweat through my only suit. The grass was so green. The flowers were immaculate. I kept looking at my watch.
I timed my walk to the court and up all those stairs so that I would arrive at his office precisely on time. I greeted his secretary and thanked her for setting everything up. The office door opened, and Justice Scalia stepped out. He shook his head very slightly in a triple take. I don’t think he expected a 27-year-old to be standing there, someone about the age of his oldest son. He smiled and shook my hand and guided me to the waiting car.
As the driver pulled out of the court garage and onto the street, Justice Scalia turned to me and asked, “why did you present this case knowing that it would destroy the NEA if you won?” It was the only question I had not prepared for.
At that point, I probably babbled about artists’ freedom of expression or about maintaining a position you believed in no matter the potential outcome. Mercifully, this is lost to time and faded memory. We arrived at the restaurant - Italian of course. He was greeted graciously and with great affection by the entire gently accented staff. We were guided to a semi-private table and seated for lunch.
We talked for over an hour, covering everything from the art nun Sister Wendy (complete with his imitation of her,) freedom of expression issues in general, life in Buffalo vs. life in D.C. I showed off my preparation by asking a few questions about past cases. (Yes, he hated voting with the majority in the flag-burning case. I was grateful to hear that he could vote against his personal beliefs.) I told him that I had prepared for our meeting by reading the Federalist Papers, and he was thrilled. We ordered different dishes. He immediately shared a little piece of fish with me, and I shared ravioli with him. Once, when the conversation lulled, I paused and said: “Nine kids, huh?” He shook his lowered head. “Yeah.”
Back in the car, we moved on to the art tour. I showed him the brochure for a Tony Oursler video installation at the Hirschorn. He made a face and turned away. We went to the Library of Congress instead and walked through an exhibition on the role of religion in early America. He told with relish the tale of how the stone donated by the Pope for the Washington Monument was thrown into the river by the Know-Nothings. I described the era of the Second Great Awakening and the burned-over district in 19th century New York State. At one point, he was recognized. A man was following closely trying to overhear our conversation. Justice Scalia and I looked at each other and wordlessly cut around a few corners until we were outside again.
He looked at his watch and grimaced. Time to get back to work. I asked if we could take a picture and handed my five-dollar instant camera to the guard who took the shot. I still have it. Grainy, off center, semi focused. I watched him walk up all those steps, and I walked away toward a Metro station, my mind pounding with all that had just happened. “Holy...”
Back in Buffalo, I wrote him a letter trying to provide an answer to his first question: “Why did you present this case knowing that it would destroy the NEA if you won?” He sent a brief response thanking me for the lunch. The moment passed. Life went on. I built a career in the arts, relocated to Houston, and eventually focused my career on civic art. The NEA survived. NAAO closed its doors. He made decisions from the bench. I followed and passionately disagreed with most of them. All these years since our lunch I have kept his framed letter on my dresser to remind me of that day. Now that letter reminds me of the man who passed on February 13, 2016 in West Texas at a ranch where I too once visited. In reading the articles and watching the videos since his passing, Stephen Colbert said it best: “I will forever be grateful for that moment of human contact he gave me.”
Sara Kellner is a consultant in Houston Texas.
