Will Justice Scalia’s Conservative Legacy Live On?

Justice Antonin Scalia during an appearance in Chicago in 2011. (Photo: Charles Rex Arbogast, AP)
Justice Antonin Scalia during an appearance in Chicago in 2011. (Photo: Charles Rex Arbogast, AP)

Larger than life, Antonin Scalia leaves in death a legacy that will be fought over for decades to come.

During 33 years on the federal bench and 55 years in the law, the leader of the Supreme Court’s conservative wing influenced the way the Constitution and government statutes are interpreted. He wrote the book on evocative, often acerbic legal writing. He transformed the court’s staid oral arguments into verbal combat. He educated and energized a conservative legal movement now seeking to influence the choice of his successor.

In each of those areas, the questions that time will tell are whether Scalia’s in-your-face methods ultimately detract from his message, and whether his poison pen and tongue — preserved for students and scholars in written opinions and audio recordings — spawns a backlash while delighting admirers.

Here are four areas that will be debated long after Scalia lies in repose Friday in the Great Hall of the Supreme Court and is extolled Saturday at a funeral Mass in the Basilica of the National Shrine of the Immaculate Conception. They represent arguments Scalia would have relished.

Founders’ Keepers

“The Constitution means what the people felt that it meant when they ratified it … Once you identify what it meant at the time, that should be the end of the debate.”

Scalia’s strikingly simple argument never changed: The Constitution, its amendments and government statutes should be taken at face value. The words should not be reinterpreted. The authors’ intentions should not be overanalyzed. New rights should not be invented.

He won some major victories along the way. His majority opinion in District of Columbia v. Heller in 2008, which upheld the right to own firearms for self-defense, was based on the Founders’ use of the word “militia” in the Second Amendment to mean most male citizens. He later called it “the most complete originalist opinion that I’ve ever written.”

It’s an argument he successfully pushed into the center of legal debate, and it won thousands of adherents over the years, said former White House counsel C. Boyden Gray. “It has become more and more the guiding principles for Supreme Court jurisprudence,” Gray said. “That’s a great legacy.”

Michael McConnell, a Stanford Law School professor and former federal appeals court judge, credited Scalia with forcing the issue into the legal mainstream. Now, lawyers and judges “at least begin with text and history” and “give it genuine weight,” he said.

But Geoffrey Stone, a University of Chicago law professor and who taught alongside Scalia there in the 1970s, said Scalia believed his elevation to the high court in 1986 would enable him to make originalism the dominant legal theory. “It hasn’t happened,” Stone said. “It hasn’t won the day.”

Scalia realized he was “playing the long game,” Gray said. He had more success on statutes than the Constitution, written before many 21st-century issues and gizmos were imaginable. When it comes to placing legal text before legislative history, Justice Elena Kagan said during a joint appearance with Scalia in 2014, “It’s true that he has won that battle.”

Scalia was pleased that he was able to advance both theories, but he said at the same event that he didn’t need the credit. “If anyone remembers me for it,” he said, “I couldn’t care less.”

A Poison Pen

“Dissents are where you can really say what you believe and say it with the force you think it deserves.” 

Asked at a speaking engagement 14 months ago to name his favorite Supreme Court justices, Scalia singled out Robert Jackson, a self-educated man who never went to law school. “He wrote like an angel,” Scalia said.

Some opponents might say Scalia wrote like the devil. His opinions frequently belittled those who disagreed, just as his dissents blasted the majority opinions he felt were misguided. He saved his most blistering comments for compromise-seeking colleagues who found middle grounds he felt did not exist, including Justices Sandra Day O’Connor and Anthony Kennedy.

“The opinion is couched in a style that is as pretentious as its content is egotistic,” Scalia wrote of Kennedy’s majority opinion in last year’s case declaring a national right to same-sex marriage. Of Chief Justice John Roberts’ decision upholding President Obama’s health care law in 2012, he wrote, “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.”

What Scalia did unfailingly was to conjure up the precise words to make his most powerful arguments, no matter how many rewrites it took. “Writing is painful,” he said last year. “It’s exacting … You have to do it, redo it and then do it again.”

In the end, colleagues and legal experts agree, most of his opinions and dissents soared — and stung. Bryan Garner, with whom Scalia authored two tomes on the art of legal writing, said he “wrote with tremendous clarity. He liked bright-line tests. He liked to make the law straightforward and clear. He did not like fuzzy thinking.”

“He will be reread for generations,” Garner predicted. “He will be long considered one of the finest writers ever to have sat on any bench, certainly on the American bench. And his influence will be the cogency of his arguments and the clarity of his logic.”

Thomas Goldstein, the founder of SCOTUSblog.com and a frequent Supreme Court litigator, said Scalia tried to write for the common man — a style Kagan, perhaps the court’s next great writer, has adopted.  “He made it fun,” Goldstein said. “You wanted to read what he said, and he said it in often very plain terms. Did sometimes he go too far? Sure, but he was trying to sound an alarm bell.”

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SOURCE: Richard Wolf