Justice Antonin Scalia’s seat on the Supreme Court of the United States will be filled by the time you read this, but his shoes can never be. Short and stout, the late jurist nonetheless towered over the institution he served, his sharp and sarcastic voice dominating oral argument in the ornate marble courtroom, his pen—or, in later years, his iPad—producing piercing opinions that provoked a disproportionate share of acclaim and outrage.
That the Court had never seen a wit like Scalia’s, or such a highbrow intellect suffused with the common touch, is beyond dispute. Other aspects of Scalia’s legacy, however, will be the stuff of debate for years. The range of essays in this volume offers some opening salvos in what may be a long war over how—and how much—Scalia shaped jurisprudence in America and beyond.
Scalia intended his opinions, in particular his dissents, to be memorable, and they are widely quoted in legal casebooks. But Scalia was more than a jurist or scholar, he was a symbol—on the broadest level, to the general public, of judicial conservatism; within the conservative legal movement, of a strictly-constructed counterrevolution to undermine the broad constitutional visions of equality and liberty laid out during the Warren era of the 1950s and ‘60s. Brian Christopher Jones, of Liverpool Hope University, and Austin Sarat, of Amherst College, set the stage by highlighting Scalia’s symbolic, not to say superficial, significance, something powerful enough to inspire at least a marginal number of right-leaning voters to pull the lever for Donald Trump in November 2016 after his pledge to fill Scalia’s seat with a nominee in Scalia’s “mold.” Brian Christopher Jones & Austin Sarat,
As a legal intellectual, Scalia is best known not for a particular doctrine but rather for a method, originalism, which, broadly stated, aims to interpret laws according to the original meaning their text conveyed at the time it was adopted. Not for nothing did Joan Biskupic title her Scalia biography Joan Biskupic, American Original: The Life And Constitution Of Supreme Court Justice Antonin Scalia (2009).
Scalia was originalism’s evangelist, traveling the nation to deliver a stump speech touting it not simply as the best interpretive method, but as the
Others saw originalism differently, perhaps most nefariously as a stratagem to undo the jurisprudence of the New Deal and postwar eras under the guise of fealty to the framers. “It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact,” the late Justice William Brennan said in a 1985 critique. “But in truth it is little more than arrogance cloaked as humility.” Justice William J. Brennan, Jr., Speech given at the Text and Teaching Symposium, Georgetown University Oct. 12, 1985, Washington, D.C., available at
There are debates about originalism, including the meta-originalist question of whether the framers originally intended that Americans centuries later apply their work according to its original meaning in the 18th century—or that the bewigged would not feel betrayed if the legal significance of broad terms such as
Nevertheless, while the substance of originalism may remain in dispute, the method certainly has prevailed in the optics of constitutional interpretation. Sometimes, the framers “laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do,” Justice Elena Kagan, nominated by President Barack Obama, said at her confirmation hearingas in 2010. “In that way, we are all originalists.” Transcript available at
The conservative federal appeals judge President Donald Trump selected to succeed Scalia, Neil Gorsuch, calls himself an originalist. At his confirmation hearings in March 2017, Judge Gorsuch sought to dispel Democratic senators concerns that originalism was a stalking horse for right–wing jurisprudence by observing that liberals use it, too.
Gorsuch invoked 554 U.S. 570 (2008). Transcript available at
Perhaps we’re all originalists, but we’re not all original originalists. When the method was defined in the 1980s, it often was stated as “original intent.” Later that was refined to “original meaning,” and later still, further clarified as “original public meaning” of the text.
Professor James Allan, a Canadian who teaches at the University of Queensland in Australia, is not subtle about his admiration for Scalia, not when he titles his essay,
“Within the broad church that is originalism, then, I think Scalia was in the wrong denomination,” Allan contends. “He should have sought the meaning of the U.S. Constitution in the actual intended meanings of the real life people who framed and ratified it, not in ‘how it was originally understood’ by some non—actual person at the time.” James Allan,
To James Pfander of Northwestern University, however, Scalia’s originalism in some instances might be considered akin to the suspension of disbelief necessary for a night at the theater. He examines Scalia’s efforts to narrow access to the courts by a strict application of limits on legal standing, which Pfander says is not compelled by the Constitution’s text but rather accretions of common law he chose to elevate over legislative efforts to create judicial remedies.
“He was, in short, something of a living constitutionalist in the realm of standing law and was only too ready to invalidate generous federal legislative grants of standing on the ground that they violated judge–made limits on the right of individuals to sue,” Pfander writes. James E. Pfander,
Professor Richard Epstein, of the University of Chicago, calls himself a “classical liberal”—by which he means not a liberal at all, at least in the modern sense. In his focused review of property–rights, Epstein comes at Scalia from the right, reaching the contrarian conclusion that his opinions simply were not conservative
Epstein accepts the narrow results Scalia wrought in some of his opinions, cases such as 483 U.S. 825 (1987). 505 U.S. 1003 (1992).
Like Justice Brennan, who dissented in Richard A. Epstein,
Jane Marriott, of Royal Holloway, University of London, professes to find a blind spot in Scalia’s critical view of campaign–finance regulation. He was unabashedly suspicious of such laws, asserting that the politicians who enact them were compromised by a natural inclination to protect their own incumbency from challengers.
Examining certain kinds of enactments—say, restrictions on gay rights or criminalization of abortion—Scalia regularly celebrated the superiority of the democratic process to the wisdom of the courts. But, Marriott asks, “do courts, insulated from politics as they supposedly are (but clearly are not) possess the requisite institutional and democratic competence to allow themselves to overrule the conclusions of legislators on political realities?” Jane Marriott,
To ask the question that way is of course to answer it, but Scalia had to wait a long time for a real–world test. For his first 20 years on the court, he was in dissent, fulminating as the majority upheld an increasingly complicated regulatory architecture intended to mitigate the corrupting potential of political spending. The bellwether decision, 424 U.S 1 (1976).
It wasn’t until 2006, when the appointment of Justice Samuel Alito created a five– member bloc convinced that restrictions on political spending should be scrutinized like regulation of political speech, that Scalia’s views commanded a majority. Year by year, the court struck down various campaign finance regulations, reaching a high–water mark in 2010 with the Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010).
Marriott tells us that the theoretical line Scalia embraced on campaign–finance amounted to “denial” of the damage unchecked spending by special interests does to the democratic process. Scalia might say, though, that that
Scalia joined the court in September 1986, barely missing the chance to participate in its most notorious gay–rights decision, Bowers v. Hardwick, 478 U.S. 186 (1986). Obergefell v. Hodges, 576 U.S.—,135 S. Ct. 2584 (2015).
Scalia could claim he simply remained consistent with originalist principles, in that the framers of the Fourteenth Amendment were unlikely to have expected it to apply to homosexuals. Ian Loveland, of the City Law School, University of London, doesn’t buy it.
“Scalia’s opinions repeatedly mischaracterized the positions adopted by members of the court with whom he disagreed and invoked quite absurd analogies to sustain his own,” he writes. Rather than antiseptically apply the text, Scalia revealed his personal bias through a “repeatedly derogatory, almost demonising portrayal, of the litigants and organisations seeking to promote the cause of sexual orientation equality,” Loveland says. Ian Loveland,
To be sure, Scalia never suggested the Constitution prohibits government from protecting gay rights. In his dissent from
“Until the courts put a stop to it, public debate over same–sex marriage displayed American democracy at its best,” is how he saw it, noting that despite the prevalence of marriage bans 11 states had legalized same–sex marriage through legislative or voter initiatives. Obergefell v. Hodges, 576 U.S.—, 135 S. Ct. 2584, 2627 (2015).
Loveland, perhaps inspired himself to hyperbole, writes that Scalia’s frothing dissents from gay–rights decisions might find an “ideological bedfellow” in Donald Trump. “Both men persistently displayed in their respective legal and political spheres a disdain for the truth of their empirical observations and a contempt for the arguments advanced by their opponents,” he writes. Loveland,
Of course, a politician’s utterances, while subject to review and criticism, ultimately are aimed at a mass audience, an electorate whose members may pay only glancing attention to their substance or treat them with skepticism. A judicial opinion has a narrower, specialized audience that is able to seriously evaluate the arguments. A dissent is about as important as the losing candidate’s reflections the day after the election. Scalia liked to say he wrote his dissents sharply, hoping they would be picked up for legal casebooks, offering him a venue to influence future generations of law students.
Trump may have understood little about Scalia’s work beyond the symbolic resonance that Jones and Sarat describe. As it happens, the justice he appointed, Neil Gorsuch knew Scalia and called him a “very, very great man,” Lawrence v. Texas, 539 U.S. 558 (2003). Obergefell v. Hodges, 576 U.S.—, 135 S. Ct. 2584 (2015).
Gorsuch refers to both White and Kennedy as his mentors, although neither justice could be considered an originalist. When Justice Gorsuch hears his first case on gay rights— as on so many other topics—we will be watching to see if he breaks the mold.