The blog in a nutshell

The blog in a nutshell

Monday, February 22, 2016

Scalia: Not Just One Thing

Almost immediately after I left for vacation (within hours of losing access to the internet), I found out that Scalia passed away.  Since I returned this weekend, I have read a lot about his death and what it (and he) means for the Court.  I have decided not to write anything at this time about the filling of his position, since this is essentially a political fight, not a legal one.


Most of the tributes (or criticisms) of Scalia in the wake of his death miss the mark in my opinion.  It is not that they are completely wrong about Scalia.  But they all seem to focus on one or two of his attributes, at the expense of others.

Yes, Scalia was an originalist (to be more specific, an original understanding textualist).  Many tributes and criticisms claim that this originalism was 100% pure or merely pretext.  Neither is right.  Yes, Scalia was also other things--a social conservative, a libertarian, a Kirkian conservative, a pro-unitary-executive--and his decisions were the result of these values balancing in any particular case.  Thus, in high stakes cases, Scalia would often would find a result that appears based on "bad originalism" (e.g., Heller), or, perhaps with a nod to the self-described faint-hearted-originalism card, ignores his brand of originalism completely and relies instead on other purported defenses of a decision, e.g., another kind of originalism, non-originalist textualism, or just precedent and stare-decisis.  Examples of opinions Scalia drafted or joined that are decidedly not original-understanding textualism include the affirmative action cases, Shelby County, Lopez, most of his First Amendment cases (including campaign finance cases), and, perhaps most famously, Bush v. Gore.  

And, indeed, the importance of Scalia's personal politics to his jurisprudence seemed to deepen with age.  When he was younger, Scalia would often hire liberal law clerks, and would engage the outside world-both conservative and liberal-even if it was more in an attempt to be influential than be influenced.  As he got older, he stopped hiring liberal clerks and even stopped reading or listening to anything other than conservative news sources.  This led to what appeared, to me at least, to be "two Scalias."  In cases lacking political importance, Scalia appeared the same as ever, an astute (if multi-valued) jurist.  In cases covered by the political press, he would instead come across as "crazy old man watching Fox News."   It's hard to know how much of this was for effect; as I detail below, Scalia appeared very aware of public coverage of him and was communicating to them as much or more so than the legal community.

But this doesn't mean he wasn't an original-understanding textualist.  In less high-stakes cases, his originalism won out.   As Eric Posner astutely noted, Scalia was just doing what other Justices were doing - using a variety of values and techniques to come up with his own version of justice.  What infuriates his non-acolytes should not be that conduct, but merely his wild-eyed accusations that others were not acting in a straightfoward, apolitical, uncalculated manner.  Of course, these accusations were correct; but they ignored that they equally applied to Scalia himself.

Scalia also appears to be a bit of a enigma on criminal law.  Many appeared to argue that Scalia was quietly one of the most pro-criminal-defendant justices on the Court.  This is incorrect.  Scalia's lack of concern for criminal defendants was often striking.  But, unlike other justices, like Alito and Rehnquist (whose jurisprudence could almost be summarized as anti-criminal), Scalia was not pro-prosecutor either.  Rather, Scalia valued the technical process.  And (other than in a few core areas), absent passion one way or another, Scalia took his original-understanding textualism to heart, allowing him to take it wherever it would leave him, like an amateur legal historian.

In large part because the connection between 18th century criminal law and the 21st century world is so opaque, this put Scalia "in play" in almost any novel criminal procedure case.  Since his vote was often necessary for a criminal defendant before the Court to get to a majority, he quickly became known as a friend.  And, in playing the crucial deciding vote in so many criminal cases, he may have made his brand of originalism more important in that arena than in any other.

Some say originalism will die with Scalia. But of course, it won't.  All eight Justices value originalism (even original understanding textualism, as the meaning of words at the time they were written are the best evidence of their original meaning) to some extent.  And thus originalism, like precedent, legislative history, structuralism, and other jurisprudential values, will continue to play a role both in how lawyers brief courts (particularly the Supreme Court) and how judges and justices rule on them.  It will decline in importance over time, most notably in criminal cases.  But it will not die.  And Scalia's acolytes, believers more true than even him, will continue to shape the law.  Should a Republican nominate one to the Supreme Court, the importance of original intent textualism may even increase.


Scalia is often hailed by critics and acolytes alike as a great writer.  But this both overstates and understates his writing.

Scalia was not exceptionally persuasive as a writer.  He was not unpersuasive, but his ability to persuade (particularly, his ability to persuade an informed reader) is significantly less than that of Roberts (the Court's currently-most-persuasive writer), or even Kagan or Ginsburg.  

But Scalia was also the first writer since perhaps Holmes himself to write for the masses.  In its simplicity, and in avoiding (usually) unnecessary detail, his writing became accessible to non-lawyers. By combining this style with incendiary rhetoric, Scalia was able to build political groundswell support for his opinions from the conservative political masses.  In doing so, he helped place the Court in the public eye in a way that it really hadn't been before, outside of a few exceptionally-important cases.  

So Scalia was hardly able to convince people who did not already agree with him that outlawing gay sex would destroy the country, that reading statutes holistically would result in the end of democracy, or (in what appears to be a coincidental level of prescience) that giving independent prosecutors too much power would lead to political witch hunts.  But he was able to convince voters and grassroots activists that these things were important.  He was also able to convince these people that the Court was undermining some political utopia regarding these subjects, so that what courts do were important.   As I now begin to discuss what I think his legacy will be, this may be the most important thing he has done.


People seem to dispute exactly what Scalia's legacy will be, although most appear to agree that it will be important for some reason or another.  Here are a few parts of Scalia's legacy that I think historians will find important in the future:

1 - Most notably, Scalia will be remembered for making the Courts subject to broad partisan debate.  He did so not just with his writing, but also his role in founding the Federalist Society.  (This would later be imitated on the left by the American Constitution Society.  Sincerest form of flattery.)

2 - Relatedly, Scalia will be remembered for his role in the most important political decisions of his day (Bush v. Gore most of all).  Ironically but unsurprisingly, these are the least originalist opinions he would write or join.

3 - Scalia will also be remembered for making an impact on how we talk about the law, particularly in terms of original understanding textualism.  Substantively, he will have a more moderate impact in making aspects of the law more closely tethered to original understanding textualism concepts - most notably, in criminal cases.  (Whether these forays into popular history are correct are not is a different question.)

4 - Scalia will be known for the remarkable effect he has had on diminishing the value of legislative history.  It is unclear yet how permanent this effect will be.

5 - Scalia will be remembered, positively, for his impact on legal writing.  Since Scalia, legal writing has become more accessible, simple, and straightforward.  Meanwhile, with at least one notable exception among the appellate bar, the non-persuasive elements of Scalia's writing style has been ignored.  And the increase in accessible writers on the Court itself - Roberts and Kagan in particular, is likely attributable to Scalia himself.