Volumen 6 (2017): Heft 1 (May 2017)

The late Justice Antonin Scalia sensibly pushed his powerful originalist agenda as a bulwark against activist justices of any persuasion from enacting their policy preferences into law. But while this commitment to originalism may explain what the justices should not do, it does not explain, affirmatively, how they should interpret constitutional texts in accordance with the originalist agenda. One area in which this is most critical is the law of takings, which polices the boundary line between private rights and public power. Here it is necessary to integrate explicit constitutional provisions dealing with the terms “taken,” “private property,” “just compensation,” “public use,” and the implied “police power” into a coherent whole. The law of takings is relatively straightforward when the government takes private property into public possession. But it is far more difficult to explicate when private parties retain some interests in property after the government either occupies or regulates the use and disposition of the rest. Justice Scalia’s application of takings law to such cases of divided interests has fallen short in four key contexts: the permitting process in Nollan; rent control in Pennell; development rights in Lucas; and environmental protection schemes in Stop the Beach Renourishment. In these cases, Justice Scalia often reached the right result for the wrong reasons, often on ad hoc grounds. The correct analysis requires a far more thoroughgoing protection of private property interest in the context of both regulatory and possessory takings. This article explains how he should have handled these missed opportunities.

Perhaps no single Justice fashioned as many changes to the law of standing as that most gifted originalist, Antonin Scalia. It was Justice Scalia who first deployed twentieth century standing rules to invalidate a citizen suit provision; who promoted the prudential rule against the adjudication of generalized grievances to constitutional status; who pressed to constitutionalize the adverse-party rule; who reconfigured informer litigation to preserve the injury-in-fact requirement; and who recently re-packaged the Court’s old prudential standing doctrine as a merits-based inquiry into the plaintiff’s statutory right to sue. That he has done so much to re-work modern litigation in the name of fidelity to the workways of eighteenth century lawyers “in the English courts at Westminster” testifies to his considerable rhetorical skills. In this essay, I evaluate Justice Scalia’s contributions to this important body of jurisdictional law and then step back to consider his legacy.

This paper assesses Scalia’s contribution to a series of cases, spanning much of his thirty years tenure on the court, which addressed issues relating to sexual orientation discrimination. The argument put forward is that these cases severely undermine any claim that Scalia might make to having been a distinguished judge in an intellectual or juridical sense. The pervasive theme of Scalia’s opinions in these matters is that of a constant failure to respect traditional tenets of legal reasoning and a compulsive inclination to engage in abusive castigation both of the litigants challenging the discriminatory laws and his judicial colleagues who did not agree with his viewpoint.

This paper examines Justice Scalia’s approach to campaign finance adjudication, in particular his skepticism of legislative motive. Three distinct strands of skepticism are identified: power-grabbing, incumbent-bracing and speech-preventing. As regards democracy Justice Scalia is identified as being caught in definitional dilemma whereby his campaign finance jurisprudence appears to serve a particular vision of democracy, which is, itself, the identifiable creature of his approach to constitutional adjudication. Ultimately, it is argued that, whilst a liberal dose of mistrust of government might well be warranted in cases concerning the devices of democracy, in the task of scrutinising campaign finance regulation and reform, a strong argument emerges for suspicion of judicial motives too since there is as much danger to democracy posed by the tenured fox as by the incumbent one.

In this article the author explains why Antonin Scalia was one of his favourite judges. It starts by excerpting some of Justice Scalia’s most biting and funny comments, both from judicial and extra-judicial sources. Then it explains the attractions of an originalist approach to constitutional interpretation, though arguing that the intentionalist strain is preferable to Scalia’s ‘original public meaning’ or ‘new originalism’ approach. Finally, it argues that within the confines of a constitutional structure with an entrenched bill of rights, Scalia was a strong proponent of democratic decision-making to resolve key social policy decisions, unlike many other top judges.

Perhaps no single judge in recent years has embodied the intricacies and difficulties of the cultural life of the law as much as American Supreme Court Justice Antonin Scalia. While common law judges have traditionally acquired status—and cultural relevance—from the significance, eloquence and forcefulness of their judicial opinions, Justice Scalia took an altogether different route. Both on and off the bench, he pushed the limits of legal and political legitimacy. He did this through a strict adherence to what we call a “judicial mandate,” flamboyant but engaging writing, biting humor and widespread marketing of his originalist and textualist interpretative theories. This article chronicles these features of Scalia’s jurisprudence and public life more generally, ultimately characterising the late justice as a “sacred symbol” in American legal and political circles, and beyond.