Scalia's Flick of the Chin

We were deeply saddened by the passing of Justice Antonin Scalia. His convictions and wit were unmatched in the judiciary. At Mauck & Baker, our own unique memory of Justice Scalia is memorialized by a personal letter in our office; the story behind it captures Scalia’s biting bluntness that made him so effective on the highest court.

In 2008, Mauck & Baker was representing Thomas Klocek who had been fired from his positon as an adjunct professor at DePaul University. The dismissal came about after a 2004 incident at a campus student fair, where Klocek had a heated argument with a group of activists over the Israeli-Palestinian conflict. When he had finished his argument, Klocek gave the Italian gesture of flicking his chin, essentially saying “I’m finished” or “I’m out of here.” The activists, however, took this as “an obscene hand gesture” and reported the incident to school officials. This along with other false accusations, led Klocek to be immediately suspended and eventually fired from his position at the University.

In 2006, the flick of the fingers again made the news, this time from the chin of Justice Antonin Scalia. At a special Mass for politicians and lawyers, Scalia was asked by a Boston newspaper reporter about whether his participation in the Mass may somehow affect his impartiality affecting cases regarding separation of church and state. In response, Scalia simply “fanned his chin.”

The incident was caught on camera and made the Boston Herald’s front page next morning, portraying the gesture as a vulgarity. Scalia wrote to the paper adamantly dismissing the portrayal, saying the editors had been “watching too many episodes of the Sopranos.”

In the midst of litigation to restore Professor Klocek’s reputation, Mauck & Baker attorneys came across the story of the Scalia fiasco. Faced with the task of proving Klocek’s Italian “fanning” was not obscene, our attorneys reasoned who better to give testimony to the meaning of the gesture than a Supreme Court Justice? At least, it would not hurt to ask.

John Mauck wrote to Scalia asking for his testimony and the Justice replied with a personal letter:

Dear Mr. Mauck:

Can’t do it. Infra dignitatem [the doctrine of being “beneath the dignity of the court”].

There are several books you could introduce to prove your point. One is The Italians by Luigi Barzini, published some 25 years ago. He tells a story about a Sicilian youth making this gesture to Garibaldi. There is also a little book, I think it’s a paperback, entitled something like Italian Without Words. It gives the meaning of various Italian gestures, including the fanning of the chin.

Sorry I can’t be of more help. And I wish Prof. Klocek success in his campaign against the ignorant.

Antonin Scalia

Professor Klocek eventually lost his case when the Illinois Supreme Court denied our appeal. See the full correspondence below.