By Mark Tushnet
Several weeks have passed, and with the President having nominated Merrick Garland as Justice Scalia’s replacement, it might be easier to offer a somewhat more detached view of Justice Scalia’s likely place in Supreme Court history than was possible immediately after his unexpected death.
Comments from his colleagues make it clear that, on the level of personal interaction, Justice Scalia was a genial man, easy to get along with (although the documentary record does show that he and retired Justice O’Connor set each other’s teeth on edge on a regular basis). From the point of view of those of us outside the Court (I should mention that I met Justice Scalia only once, so far as I can recall, and even then had quite limited contact with him), this raises questions about how we should think about the relation between personal qualities and contributions to the law and to the institution of the Supreme Court.
Those questions are pertinent because, in my view, along several dimensions Justice Scalia’s contributions were negative, so to speak. That is, overall, his work as a Justice over an extended period made the nation worse off than it might have been. (There’s a lurking counterfactual here, of course: Had Justice Scalia not been placed on the Court, who would have been, and what would that person’s contributions have been? I’ve thought some about that question, but addressing it here would take me too far afield.)
Saying that his overall contributions were, in several ways, negative is, of course, a controversial assertion. The claim, for example, that he helped move the Court in an undesirable conservative direction, or supported a stronger conservative corrective to excesses by his liberal predecessors than was needed, is rather openly political, and would be rejected by many people on the conservative side of the political spectrum. So, all that I can really do is identify the dimensions that I find more interesting than the merely political.
The first is his judicial style. I believe that much of what has been said in praise of Justice Scalia’s distinctive writing style is mistaken. As I’ve written elsewhere, what he did was to bring the polemical style of conservative talk radio to the Supreme Court, and that, in my view, demeans legal discourse. The more often law students, young lawyers, and other judges take Justice Scalia’s style as a model—because it has been so highly praised—the worse off our legal system will be. I should probably be explicit here and say that this view is entirely independent of my views about the political valence of Justice Scalia’s work. Rhetorically sober conservatives would be better for the Court than ones in Justice Scalia’s tradition, and I hope that liberals avoid his rhetorical excesses.
Second, what of Justice Scalia’s commitment to a specific approach to statutory interpretation? In his distinctively strong version of “textualism,” judges should rely almost exclusively on the statute’s words—even in cases of seeming ambiguity—as the words would be understood in their context. It’s the “almost exclusively” part that made his approach distinctive; everybody, before and after his appointment, thought that text, context, ordinary and technical meanings, and the like mattered. The difference is that other jurists thought that sometimes they could do better in interpreting statutes if they paid attention to what legislators said in official committee reports, in formal statements on the floor of the House and the Senate—the materials conventionally described as “legislative history.” Justice Scalia would have none of that. For a while, it seemed as if he had brought several colleagues along. But, even before his death, it was clear that he stood alone on the Court in adhering to such a strong exclusive textualism. And, indeed, in the first set of opinions released after his death, the Court divided five-to-three on a question of statutory interpretation—and both opinions relied expressly on what they described as legislative history. In that sense, Justice Scalia’s textualism has already passed from the scene.
That might turn out to be true as well for his commitments to a particularly strong version of originalism in constitutional interpretation. Everyone has always agreed that original understandings or meanings were relevant in constitutional interpretation. What made Justice Scalia’s position distinctive was that it asserted—at least as a matter of theoretical preference—that reference to original meaning or understanding was the only thing that mattered. This exclusive originalism, as Professor Mitchell Berman called it, is likely to retain some force, though not, I think, much of it on the Supreme Court itself except as a rhetorical weapon to wield against liberals. Rather, it will persist because it has taken rather deep roots in conservative legal circles, including among conservative law professors, and they are unlikely to abandon it even if, as seems to me likely, exclusive originalism will not have a strong voice on the Supreme Court.
For me, perhaps the best analogue in Supreme Court history to Justice Scalia is Justice Felix Frankfurter. There are obviously some differences. Justice Frankfurter did not get along well with most of his colleagues, particularly as the years passed, and his opinions were clunky and difficult to read even when he strove for rhetorical effect. But Justice Frankfurter was extremely well-regarded while he was on the Court. Indeed, he was probably regarded in academic circles as the only Justice with any serious credentials as a thinker about constitutional matters. His reputation faded quite rapidly, to some degree, because unlike Justice Scalia, he did not generate a seemingly permanent veneration among those of his law clerks who entered the legal academy, and so were in a position to propagate views about “their” Justice’s ability. My judgment is that Justice Scalia’s reputation will fade too. Not as rapidly to Justice Frankfurter’s, but probably, eventually to the same low point.
About the Author
Mark Tushnet is the William Nelson Cromwell Professor of Law at Harvard Law School. Previously a professor of law at Georgetown University and University of Wisconsin, Tushnet is the author of numerous books, including A Court Divided. He lives in Washington, DC.