Walter Dellinger
Walter Dellinger testifies on Capitol Hill in Washington, January 30, 2007. Dellinger, a noted constitutional scholar who argued numerous cases before the Supreme Court, served in top positions in the Justice Department and was a professor at Duke Law School, died Wednesday, Feb. 16, 2022. He was 80. (AP Photo/Haraz N. Ghanbari)

One spring night thirty-some years ago—I am fairly certain it was Monday, April 2, 1990—Walter Dellinger, then a law professor at Duke University, had a dream. Daylight Savings time had begun the previous Sunday, and in his dream, federal agents visited his Chapel Hill home to investigate his time-change compliance. 

Every clock in the Dellinger house had been moved ahead one hour, he told them. But they were not reassured. “Look here, professor,” one said. “Last Friday you woke up at 7 a.m. and went to Sutton’s Drug Store for breakfast at 8. On Monday, you woke up at 8 a.m. and went to Sutton’s Drug Store for breakfast at 9. Do you call that compliance? Aren’t you being rather formalistic?”

At that point, Walter told me, he woke up, no doubt chuckling at the witty jurisprudential joke his subconscious had teed up for him. It takes a special kind of lawyer to dream of the difference between “formalism” and other statutory hermeneutics; it takes one in a million to make that difference funny. 

Dellinger died Wednesday at the age of 80, after a career that marked him as one of the legal giants of our era. Many remembered—and justly celebrated—him as a brilliant and prolific scholar, a titan of the Supreme Court bar, an inspiring teacher and mentor to generations of bright proteges now in elected office, federal and state government, and on the bench. He was also a government lawyer whose advice was important to both Bill Clinton and Barack Obama. Key officials in the Biden White House sought his advice almost literally until the day he died.

But when I heard of his death, I thought of that dream he told me about when I was his student. What came to mind were the dozens of gentle but outlandish imaginings and jokes with which he amused students, colleagues, peers, and courtroom opponents—jokes that defused some of the terror that attends law and its practice.

Walter can be described with the same words the novelist Rafael Sabatini used to introduce his most famous character, Scaramouche: “He was born with a gift of laughter and a sense that the world was mad.” It’s a gift that helped make his career one to be admired—not only for its effect on American law, but for the joy that he spread as he pursued his more serious dreams. He made the practice of law, often dry and lifeless, into something fully, vibrantly human. And because of his inimitable sense of humor, he died with almost no enemies, and many, many friends, even though he had spent years at the forefront of divisive legal issues.

Walter was my first law professor, and beyond question the most memorable. His teaching method was arresting; he would often stride into our classroom with a casebook under his arm and ask nobody in particular, “What was the assignment today?”

Someone would call out the case or issue we were expecting to cover, and Walter would put the book aside. “West Coast Hotel v. Parrish,” he would say. “Funniest thing, I was thinking of that case just last week.” Then a series of variations on the issue of the day would follow; anecdotes, counterfactuals and hypotheticals, links to other seemingly unrelated cases, and most of all, analysis of the turns and choices the lawyers, and the justices, had made, and what other issues had come before the Court that term, and what some Justice had written in his memoirs, and what arguments or strategies might have altered the outcome. Most days he didn’t even need to open the book. 

It was like getting saxophone lessons from Charlie Parker. For three decades I have remembered his vision of constitutional law not as a stately progression of doctrines created by all-wise judges, but as a contingent process, the sum of hundreds of human choices, some erroneous, some malign, some far-seeing, and most of them faintly comic. 

The obituaries have recorded the important facts. He was born in Charlotte, N.C., won a scholarship to the University of North Carolina at Chapel Hill and another to Yale Law School. After graduation, he journeyed to Oxford, Mississippi, to teach civil and political rights at the University of Mississippi School of Law, on a campus that had, only a few years before, been desegregated at the point of U.S. Army bayonets. Then from there he clerked for Justice Hugo Black, and from there to Duke, where he taught full time until he joined the Clinton White House counsel’s office in 1993. 

In the White House, he helped draft executive memoranda that the new president signed on his first day in office, sweeping away Reagan-era anti-abortion policies in research and medical-care funding, military policy, pharmaceutical regulation, and foreign policy. A few years later, he transitioned over to the Justice Department’s Office of Legal Counsel, and then the Solicitor General’s office, where, as acting SG, he argued nine cases before the high court—one third of his astonishing lifetime total of 24. After leaving government, he headed the appellate practice at O’Melveny, one of the nation’s most venerable super firms.  

But this account, glittering though it is, understates the tale. Walter’s life was a generational epic of a region emerging from cultural slumber and racial dictatory, a story worthy of a Thomas Wolfe or a Pat Conroy. It’s first character would be his mother. 

When Walter was very young, his father, Walter Dellinger II, died without warning, leaving the family in desperate financial need. Grace Dellinger went to work as a salesclerk in a department store, at a time when women’s place in the workforce was tenuous at best. She supported Walter and his two sisters until they launched into the world, and she remained in some ways his best friend, and certainly biggest supporter; while she lived, they visited each other often, but by agreement never strained the friendship by spending more than one night at a time under the other’s roof.  

The next setting was Chapel Hill, a surprising and transformative place for a small-town boy (Charlotte at the time had fewer than a quarter-million residents), offering entry into an educated milieu he had only dimly glimpsed before. His UNC roommate, he said, was so provoked by his hillbilly pronunciation of “Sa’rdy” that he fastened a large placard—SAT-UR-DAY—on the ceiling over Walter’s bed. 

At UNC, he met Anne Maxwell, a classmate from an old New Orleans family whom he found so glamorous that he assumed she would never look twice at a poor Piedmont boy. One summer, unable to stand her allure, he impulsively hitchhiked to New Orleans to pour out his heart. I am not sure he ever quite got over the surprise of her acceptance. 

After law school, two years in Mississippi—the heart of the Southern darkness, where violence still hung in the humid air—Hugo Black himself granted Walter a kind of papal blessing by hiring him to become one of his law clerks. Walter’s success led to more success and adventures away from home. But he was always grounded in the North Carolina clay, where he returned for the years before his death.

It was probably the epic quality of this tale that underlay our friendship; I was only nine years younger than Walter when I first met him in a classroom; as a Southern novelist myself, I knew a larger-than-life character when I met one. We were both Southern-born white liberals, children of the Civil Rights era who had seen our native region transformed by the power of law to command respect from many who opposed the Supreme Court’s decrees. Law, to both of us, seemed like a force that could reach down into ordinary lives to lift burdens and open doors.

But what really sealed the deal was our mutual recognition that underneath the solemnity of law and the savagery of politics, the whole tragic spectacle was also, at some level, an enormous joke played by a creator with a sense of humor even stranger than our own. And the joke, to be sure, was on us.

For all Walter’s fierce ambition, he never took himself too seriously. He called me once because he had heard that a speaker at a conference I’d attended had referred to him as “too old” to be considered for the Supreme Court. “Why didn’t you stick up for me?” he asked plaintively. “At least you could have said that I am very immature for my age!” Not even the approach of death was entirely serious. He told me his doctor had told him that he could expect to live about five more years with his chronic lung condition. 

“Then I asked him again and he said, ‘two years.’ I said, ‘Last time I asked, you said five years,’ And he said, ‘Walter, that was three years ago.’”

Walter never worked as a journalist, but he understood the importance of airing constitutional issues for the general public. He authored an essay, “Say Amen or Else,” about the loneliness of being a Southern Catholic boy who walked out of the elementary school classroom when “voluntary” Bible study began. The piece appeared in The Washington Post a few days before the Supreme Court was to hear a case that observers expected to make it easier for schools to conduct “voluntary” prayer sessions. As it turned out, though, the Catholic Justice Anthony Kennedy’s opinion rejected the practice; he understood it as part of the psychology of coercion in public schools. At a Supreme Court event, I once heard the Post piece referred to as “the most influential amicus brief of the entire term.”

 While he was at O’Melveny, the firm took on the case of a drug dealer whose conviction was obtained by attaching—without a warrant—a GPS tracker to his car and mapping his movements for a month. On the morning the case was to be argued, National Public Radio’s Supreme Court correspondent, Nina Totenberg, aired an interview with Walter. Under the government’s no-warrant standard, he told her, it could put trackers on the cars of all nine Supreme Court justices and track them for a month. That morning, at the seven-minute mark in oral argument, Chief Justice John Roberts asked the government’s lawyer whether that, in fact, would be legal. “You think you’re entitled to do that under your theory?”

Apparently caught off guard, the lawyer answered that it would be perfectly legal. That did not seem like the right answer; O’Melveny’s client won the case. “Always listen to ‘Morning Edition,’” Walter told me. 

His last moment in the public eye, days before his death, was a column in The New York Times endorsing President Biden’s pledge to name a Black woman to the Supreme Court.

I said at the outset that Walter left behind few enemies. Indeed, I personally know of only one true enemy Walter had—North Carolina’s much-feared Republican Senator, Jesse Helms. During the Clinton years, Helms, along with his sidekick, Senator Lauch Faircloth, bitterly opposed Dellinger’s nomination as head of the Office of Legal Counsel. It’s a battle that, years later, probably prevented his moving from Acting SG to just plain SG. It was also a dark cloud over a potential nomination to the Fourth Circuit, which would have been a steppingstone to the Supreme Court seat he dreamed of. 

Helms explained that he opposed Walter because of his work to block the far-right Reagan nominee Robert Bork’s nomination. There was another factor undoubtedly behind Helms’ antagonism: His bitterness that Walter had served as a prominent supporter of two Democrats who ran against Helms and lost. Knowing both men, though, I think it went deeper than that. Helms hated Walter, I think, because he was a living rebuke to the central tenet of Helms’ self-image—the idea that he, with his xenophobia and racism, was the tribune of Southern whites of humble origins upon whom liberal values were being imposed by Yankee elitists and undeserving Blacks. If one must have enemies, one could do far worse than alienating Jesse Helms and Lauch Faircloth. 

And if one needs a friend, one could do far worse than my daughter, Maggie. One afternoon in 1992, Walter dropped by our house in Chapel Hill as our family was packing for a move to Eugene, Oregon. Spotting six-year-old Maggie on the floor, Walter plopped down and began rolling a toy ball back and forth with her. Within half a dozen rolls, she was telling him of her worries about a new school—worries she hadn’t shared with her parents until then. 

Along with the imaginary interrogation by the Time Police, that moment of play is among my most vivid memories of Walter Dellinger, legal giant. It calls up lines from British poet W.H. Auden’s sonnet “Edward Lear,” about the eccentric English artist who became the greatest nonsense writer of his time. “Children flocked to him like settlers,” Auden wrote. “He became a land.”

Walter Dellinger became a land and leaves a legacy broad and deep enough to house a generation of his grateful children in the law. I am not and could never be one-tenth the lawyer he was, but I matched him joke for joke. So there is room for me there in the humor section.

God willing, I shall dwell in that house of mirth for the rest of my days.  

Garrett Epps

Follow Garrett on Twitter @ProfEpps. Garrett Epps is legal affairs editor of the Washington Monthly. He has taught constitutional law at American University, the University of Baltimore, Boston College, Duke, and the University of Oregon. He is the author of American Epic: Reading the U.S. Constitution.