Remembering ‘The Boss’: Scalia’s Legacy, 2 Years On

Two years ago today, the legal world was jolted with shocking news from Texas: U.S. Supreme Court Justice Antonin Scalia, 79, died in his sleep at a hunting ranch.

With his outsized influence and personality, it took 14 months of partisan delay and wrangling to replace Scalia. His successor Neil Gorsuch made it clear from day one that he would carry on Scalia’s originalist and textualist views—doctrines that both liberals and conservatives agree altered the way the court looked at statutes and the Constitution.

“Thanks to Scalia’s disruption, the Supreme Court may never be the same,” said Richard Hasen, author of “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption,” in a column Tuesday in The Washington Post. President Donald Trump also honored Scalia’s memory, in a way, by nominating like-minded appeals court and district court judges whose influence will be felt for decades.

Here is how Scalia admirers, critics and clerks are thinking about Scalia and his legacy, two years later:

Kannon Shanmugam, former Scalia clerk and head of Williams & Connolly’s Supreme Court and appellate litigation practice: “Even two years on from his death, Justice Scalia remains a powerful influence on the court. His legacy lives on in the court’s approach to constitutional and statutory interpretation. While there are differences in approach among the court’s members, the court largely plays on the playing field that Justice Scalia established.”

Elizabeth Wydra, president of the liberal Constitutional Accountability Center: “On the one hand, Justice Scalia left behind a number of former clerks—including Kannon Shanmugam, Lawrence Lessig and others—whose work and temperament continue to reflect with great distinction on the legal profession. On the other hand, Justice Scalia’s replacement, Justice Gorsuch, is poised to prolong the least defensible aspects of Scalia’s legacy for another generation, including skepticism toward claims made by marginalized groups and sympathy for business interests—neither of which is moored in the text and history of the Constitution.”

Evan Young, former Scalia clerk and partner at Baker Botts: “It’s still hard to believe that he’s not here. There’s no formal clerk-wide memorial [today], but you can be sure that there will be a lot of cigars smoked and red wine drunk across the country as the clerkerati remember the Boss. As a group, we do still get together once a year—an institution of justice and Mrs. Scalia’s making. He never missed one. Spending the evening with him and Mrs. Scalia along with decades of the clerk family was always a high point in the year for all of us. Given how faithfully he prioritized those reunions, I can promise that there are no plans to abandon the tradition of enjoying each other’s company and celebrating his legacy.”

David Dorsen, Washington lawyer and author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions”: “Without Justice Scalia the Supreme Court is far less interesting place for both participants and observers. He could not abide what he considered sloppy thinking and writing on the part of lawyers and colleagues. His style will never be forgotten, and no one on the present court is likely to challenge his legacy in that respect. His reading of the Bill of Rights that apply to criminal law made him a leader in expanding defendants’ rights in many areas, including the right to confront witnesses, what constitutes a search, and when is a defendant entitled to a trial by jury. Justice Scalia was a far more complex individual and justice than most credit.”

Carrie Severino, chief counsel of the conservative Judicial Crisis Network: “There are so many ways in which Justice Scalia’s legacy lives on. He was a leading voice for taking the Constitution seriously that has already inspired generations of lawyers. And his compelling arguments and trenchant prose will continue to shape our approach to the law for generations to come. Justice Gorsuch himself is not only Scalia’s successor but also someone whose approach to the law was formed in a legal environment made possible by Scalia’s leadership on the court. Justice Scalia is sorely missed, but his influence is still very much alive.”