Federal Courts and Nominations

Six Months After Death, Scalia’s Legacy Garners Raves and Raps

By Tony Mauro

The U.S. Supreme Court chambers once occupied by Justice Antonin Scalia are still in the process of being closed down.

Earlier projections would have had the job done months ago. But six months after Scalia’s death, court staff members are still slowly boxing up decades of Scalia’s documents and memorabilia. No destination has been set for his papers.

There is, after all, no reason to hurry, with the U.S. Senate sitting on the nomination of his would-be successor Merrick Garland, who was nominated five months ago. And Scalia’s colleagues are apparently not clamoring to move into his chambers — an option offered to justices by seniority when a sitting justice dies.

But one aspect of Scalia’s legacy is moving forward: the vigorous debate among legal scholars and former clerks about the justice’s impact and importance on the court. Amidst wide praise for his adherence to originalism and principle — even when it led to decisions he disagreed with — some are also faulting him for favoring combat over consensus, which may have hurt his effectiveness and weakened the staying power of his precedents and positions.

“He does have major legacies—the primacy of text in statutory interpretation, and protecting the rights given to criminal defendants in the Constitution,” said Richard Bernstein, a former Scalia clerk and partner at Willkie Farr & Gallagher.

But Bernstein said Scalia was ultimately unsuccessful in his main project of making the Supreme Court less powerful, less prone to constitutionalizing issues that are best left to legislators.

“It is a sad commentary on the ability of Justice Scalia to reduce the power of the Supreme Court that in the current election, an argument is being made that you should elect someone like Donald Trump, whom you disagree with on everything else, because he would nominate the right candidates to the court,” said Bernstein, a Democrat. “That is ass backwards.”

Assessing a justice’s legacy can take time, as the court either preserves or turns away from his or her most important precedents. But early appraisals can be harsh.

Accolades during a justice’s life and at the funeral can turn quickly into skepticism. Chief Justice William Rehnquist, previously the last justice to die in office, was initially praised as an important conservative leader of the court, but then scholars piled on, accusing him of letting his major priorities—advancing federalism and property rights, for example—fizzle.

At the time, Pepperdine University School of Law professor Douglas Kmiec said drily, “It is very seldom that law professors get together to offer bouquets of praise.”

A half-dozen or so such gatherings have popped up to debate Scalia’s legacy, and at least one law review symposium was assembled by the University of Minnesota Law Review.

“One still wonders whether Justice Scalia’s sharp tongue earned him any grudges,” University of Minnesota Law School professor Robert Stein wrote. He cited Scalia’s dismissal of the majority opinion in United States v. Windsor as “legal argle-bargle.” Comparing Scalia to the late liberal icon Justice William Brennan Jr., Stein asserted that Brennan “moved the court through negotiation and willingness to meet his conservative colleagues halfway. Justice Scalia is consequential for nearly opposite reasons. Justice Scalia pursued ideology over cooperation.”

In the same symposium, George Washington University Law School court scholar Alan Morrison also discussed Scalia’s stinging dissents. “It no doubt made him feel better that he had fully expressed his misgivings in clear terms, but whether it helped his long-range goals of reining in a court that he concluded was no longer interpreting the law, but making it up, remains to be seen.”

But Scalia’s adherence to principle rather than compromise has also won high praise. “He did what principles said he should do,” said Harvard Law School professor Lawrence Lessig, who was a Scalia clerk but disagreed with most of his conclusions. He spoke at a Harvard symposium on Scalia on Feb. 29.

Courage underlies Scalia’s opinions, said Harvard Law School professor Adrian Vermeule at the same event. “I think because of his courage, he will have an unusually durable intellectual reputation.”

At a National Constitution Center discussion May 6, even Brianne Gorod of the liberal Constitutional Accountability Center praised Scalia for making originalism—adhering to the original meaning and words of the Constitution—the preeminent method of constitutional interpretation. “He really changed the way people think,” Gorod said—though contrary to Scalia, she said her embrace of originalism leads to the conclusion that the Constitution is “fundamentally progressive.”

Commentators have also highlighted Scalia’s seemingly counterintuitive pro-defendant stance in some criminal cases—including the Sixth Amendment’s confrontation clause, guaranteeing defendants’ right to have a face-to-face confrontation with their accusers. Scalia once said his 2004 opinion in Crawford v. Washington, which breathed new life into the clause, was his favorite opinion.

But University of Michigan Law School professor Richard Friedman, a leading expert on and advocate of the confrontation clause, said in the Minnesota symposium that the court has weakened Scalia’s Crawford precedent in subsequent rulings. “In the short term, I am not optimistic,” Friedman said.

Scalia’s tenacity in questioning lawyers at oral argument, and his reputation as one of the court’s best writers in history, are also emerging as key features of his legacy.

“He has upped the game,” Harvard Law School dean Martha Minow said. “It’s now a competition [within the court,] I understand, to see who can write a memorable sentence.”

Harvard professor Richard Lazarus said Scalia’s high-energy questioning at oral argument “ignited the court” and led, in no small part, to the growth of the specialized Supreme Court bar “to respond to Scalia’s demand for legal analysis. We needed a better bar.”

Scalia’s warm personality has not been disputed during discussions of his legacy.

William Suter, the longtime former clerk of the Supreme Court, paid tribute to Scalia in the Federal Lawyer magazine in July.

“He respected and loved his colleagues,” Suter wrote, recalling one occasion when Scalia announced his majority opinion from the bench, and another justice, unnamed, read a dissent. “After the court adjourned, I went behind the curtain where the justices were removing their robes. Justice Scalia and the dissenting justice engaged in some friendly banter and he said, ‘Let’s go to lunch.’ They both smiled and walked off to lunch, best of friends.”

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