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Did Scalia Really Have an Outsized Influence on the Court?

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Scocca and Pareene had an interesting exchange about how to evaluate Scalia’s legacy. I’m closer to the former. Pareene:

In a sense, his project wasn’t new. The Supreme Court has been conservative for a long, long time, and if Antonin Scalia had sat on the court for the last 200 years instead of 30, he would have written a concurrence in Dred Scott, the majority opinion in Plessy v. Ferguson, and a devilishly quotable dissent in Brown v. Board of Education. But he was the embodiment of the new kind of conservative jurist, who sought not just to maintain some favorable status quo, but (ironically) to use the courts to remake society. Before Scalia, the notions that Congress couldn’t restrict political spending, or that the Second Amendment guaranteed an individual’s right to private firearm ownership for self-defense, were widely considered absurd. Now they’re accepted precedent, with today’s liberals arguing how to legislate around the margins of those decisions.

There’s a tension between the setup and a conclusion of the paragraph, and I think the first part actually gets it right. Had Reagan nominated Robert Bork or Ken Starr instead of Scalia, the outcomes in all the cases Pareene mentions would have been the same. The Second Amendment containing an individual right to bear arms didn’t become conservative orthodoxy because of Scalia; it was a triumph of conservative activism and academia that culminated in the Supreme Court.

This is even more stark when it comes to campaign finance. (I should make it clear here that I’m not writing this to single out Parene, whose writing I enjoy a great deal and isn’t a specialist on the courts, but to make a broader point about the misunderstood significance of Citizens United.) Not only was the First Amendment being used to forbid restrictions on campaign spending fathomable before Scalia took his seat on the Supreme Court, the Supreme Court had held exactly that a decade before Scalia was confirmed. While it has come to symbolize the Supreme Court’s jurisprudence on campaign spending and donations, honestly if I was compiling a list of the worst Supreme Court decisions of the last 20 years it probably wouldn’t even make my top 10. It really just made an already really bad situation marginally worse, and I actually think that the judgement (as opposed to the reasoning) of the Court was correct.

When it comes to Scalia’s influence, I still think Tushnet had him clocked: “Basically, anyone whom Ronald Reagan selected for the Supreme Court who had strong ties to the Federalist Society would have done what Scalia did.” His idiosyncratic disdain for legislative history and balancing tests might have some influence — although it’s hard to say how many outcomes have been materially affected — and perhaps not every generic Federalist Society nominee would have had Scalia’s sporadic libertarian streak. But in general Scalia reflected trends in the Republican Party far more than he caused them. (Incidentally, I think this tendency to reverse cause and effect when evaluating the Supreme Court is common. Roger Taney didn’t write Dred Scott because he was some uniquely evil figure. He was a generic Jacksoninan Democrat reflecting orthodox Jacksonian views shared by Jacksonians in the White House and congressional leadership. The morally repellent result of that case was ideologically and politically overdetermined in that context.)

For similar reasons I don’t really buy this argument that Corey Robin made in The Reactionary Mind, which he linked to again in the wake of Scalia’s death:

Several other factors explain Scalia’s dominance of the Court. For starters, Scalia has the advantage of a straightforward philosophy and nifty method. While he and his army march through the archives, rifling through documents on the right to bear arms, the commerce clause, and much else, the legal left remains “confused and uncertain,” in the words of Yale law professors Robert Post and Reva Siegel, “unable to advance any robust theory of constitutional interpretation” of its own. In an age when the left lacks certainty and will, Scalia’s self-confidence can be a potent and intoxicating force.

[…]

The fact may be small and personal, but the irony is large and political. For Scalia preys on and profits from the very culture of liberalism he claims to abhor: the toleration of opposing views, the generous allowances for other people’s failings, the “benevolent compassion” he derides in his golf course dissent. Should his colleagues ever force him to abide by the same rules of liberal civility, or treat him as he treats them, who knows what might happen? Indeed, as two close observers of the Court have noted—in an article aptly titled “Don’t Poke Scalia!”—whenever advocates before the bench subject him to the gentlest of gibes, he is quickly rattled and thrown off his game. Prone to tantrums, coddled by a different set of rules: now that’s an affirmative action baby.

In response to the bolded question, I would just say “nothing.” Whatever the merits of this Stanley Fish-like “liberals refuse to stand up for themselves” argument in other contexts, in the context of the Supreme Court liberals stood up to Scalia perfectly well, and approaching his histrionics with  give-’em-enough-rope dispassion seems entirely appropriate. I honestly have no idea how Scalia’s talk-radio tone is really materially relevant to anything. As I said at the time, my fundamental disagreement is that I think Scalia’s “dominance” of the Court has been vastly overrated. When has he ever persuaded anyone who didn’t already agree with him? I don’t know whether Scalia’s insulting language caused it, but O’Connor moved further from Scalia, not closer, over time. From Casey to King, his Republican colleagues have never let the possibility of one of his BLISTERING dissents stop them from doing something they wanted to do. I would also say that, as a matter of rhetorical strategy, to the very limited extent that it matters the calm, rational tone represented by Roberts’s opinion for the Court in King or Ginsburg’s dissent in Shelby County is more effective than Scalia’s increasingly pathetic ranting.

I’d say something similar about the alleged influence of Scalia’s originalism. First of all, grand theory does pretty much no work in deciding cases. And second, I don’t really see that Scalia has made it all that much more important. George W. Bush’s two appointees have been notably uninterested in grand theory (and, for the reasons stated above, Alito is a scarier operative than Scalia ever was.) It’s true that both sides in Heller made arguments that largely rested on history, but this is nothing new. Supreme Court opinions have been citing historical factoids when they can help and ignoring them when they don’t for time out of mind. The fact that Heller broke down on a party-line vote anyway demonstrates that which grand theory (if any) Supreme Court opinions use to justify their conclusions just isn’t very important. And to the limited extent that it matters, Thomas, not Scalia, is the justice who cares most about originalism and has done the most to advance it.

The routine William Brennan used to demonstrate how power functions at the Supreme Court to his clerks — holding up five fingers — is still useful. Scalia influenced the direction of the Court because he was a generally reliable vote for his faction, and he didn’t really drive the Court otherwise.

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  • NymJack

    [Troll desperate for attention]

    • Scott Lemieux

      [Should have checked the source first]

      • Lee Rudolph

        I believe this is a reference to a canonically-named Italian organ-grinder and his monkey helper. In which case Alito would not have been slurred, but there would have been a bonus extra ethnicity in the slurry.

        So I’m hoping for a nymjack (though you’d presumably have noticed that).

        • Lee Rudolph

          Well, I for one am grateful that I was so fortunately led to open an acquaintance with the notion of monkey helpers. (There was a “monkey butler” meme in alt.buddha.short.fat.guy for years, but I assume that it had some other origin, possibly even canonical for another value of “canon”.)

          • N__B

            Monkey butlers play a key role in at least two Simpsons episodes.

  • anonymous

    IMHO SCOTUS has become way too powerful. Not only has it become a US House of Lords super-legislature that can create or strike down laws at whim, its small membership makes a single individual Justice super powerful and indeed have “outsized influence”.

    To restore balance, I propose that Congress be allowed to override the SCOTUS opinion in the same manner as a POTUS veto override. This and SCOTUS term limits would be a much needed reform.

    • Snarki, child of Loki

      The GOP-controlled House has had ample opportunity to reign in the Court, by impeaching Roberts for his Obamacare apostasy.

      And yet, they’re too, too cowardly to even consider it.

      They’d prefer to just sit around and emit high-pitch whining like a bunch of castrati.

      • mikeSchilling

        That comparison is really offensive to people who were through no fault of their own testicle-challenged.

        • tsam

          Women?

          • N__B

            The guy in that safety video – which I know you must have seen – who was wearing his harness improperly when he fell at a construction site.

    • rewenzo

      We already have a House of Lords that strikes down laws at whim much more often than the real House of Lords. It’s called the Senate. We should get rid of that.

      Of all the institutions in the federal government that I’d reform in any semi-drastic way, the Court is the least of my problems.

    • Docrailgun

      Then we’d still be stuck with “separate-but-equal (Plessy)”, with no access to legal abortion (Roe), with miscegation laws (Loving), with a segment of our population with no legal way to be married to the person of their choice (Obergefell) and lots of other things.
      SCOTUS is a necessary check and balance to the other two branches of the US government. “The will of the people” supposedly expressed through Congress or state governments is not always the right choice. the rise of Trump is a good example.
      While it’s too bad that a conservative majority existed there until Scalia’s death, term limits would make it easier to pack a court with a party’s choices OR (worse) make it impossible to fill vacancies in the court.

    • rea

      A rule that Congress can violated the Constitution by a 2/3 vote–which is what this anonymous guy is proposing–renders the Constitution meaningless.

    • efgoldman

      I propose that Congress be allowed to override the SCOTUS opinion in the same manner as a POTUS veto override.

      Actually, congress can and does override statutory interpretation decisions that SCOTUS makes. Lily Ledbetter is just such a case. They changed the statutory language so it was no longer ambiguous and challengable in the eyes of the court.
      There was also a case in which Ted Kennedy tried to change insurance law to void a SCOTUS decision (that civil damages could only be awarded to the amount of benefit the insurance company would have had to pay). That bill, unfortunately, failed to pass.

    • timb

      He’s some Mark Levin listening kook. Levin proposed not only 2/3’s of the Congress, but 2/3’s of state legislatures could override a SCOTUS decision

  • H!A! Bragman Goodman Walkman

    Looks like Rob from CT was a victim of a half-assed nymjacking. The tell (IMO): terrible comma use. Same as was present in the JfL nymjacking in another thread.

    • brad

      Sounds like Dick Manley’s time with an open mic is about to end.

    • efgoldman

      Same as was present in the JfL nymjacking in another thread.

      jfl was nymjacked? A very dangerous pursuit. He will cut your ass.

  • Mark Field

    Re tone: Sandy Levinson just put up a post at Balkinization on Scalia’s trash talking.

  • Denverite

    I’d say something similar about the alleged influence of Scalia’s originalism. First of all, grand theory does pretty much no work in deciding cases. And second, I don’t really see that Scalia has made it all that much more important. George W. Bush’s two appointees have been notably uninterested in grand theory (and, for the reasons stated above, Alito is a scarier operative than Scalia ever was.) It’s true that both sides in Heller made arguments that largely rested on history, but this is nothing new. Supreme Court opinions have been citing historical factoids when they can help and ignoring them when they don’t for time out of mind. The fact that Heller broke down on a party-line vote anyway demonstrates that which grand theory (if any) Supreme Court opinions use to justify their conclusions just isn’t very important. And to the limited extent that it matters, Thomas, not Scalia, is the justice who cares most about originalism and has done the most to advance it.

    Hasn’t this been the mainstream view for a really long time? It’s what I remember learning. Scalia is a “soft” originalist. Thomas and Bork are the hardcore ones.

    I do think that Scott underestimates the influence of Scalia’s textualism on non-textualists. The bits in King where Roberts quoted Scalia’s prior decisions at length were first class trolling first and foremost, but they also have a pretty big grain of truth. Scalia’s textualist approach has become so ingrained into statutory interpretation methods that even the non-textualists really have to be seen as textualists-plus.

    • Scott Lemieux

      Hasn’t this been the mainstream view for a really long time?

      Among specialists, yes. Outside the legal academy, less so.

      Thomas and Bork are the hardcore ones.

      Bork’s originalism was if anything even more shallow and opportunistic than Scalia’s. For most of his scholarly career he was a law-and-economics guy, and The Tempting of America rarely has even law office history in it.

  • Joe_JP

    I honestly have no idea how Scalia’s talk-radio tone is really materially relevant to anything

    Scalia and Thomas were for years put out as ideals for judges and their overall approach to being a judge (shoddy in certain ways) is somewhat important to me personally. Scalia promotes a basically crude approach on a civics level and above & beyond results on specific subjects, it is a net negative.

    Scalia is to be honored for responding to the other side, though how he handled it was a mixed bag. Kennedy’s above the fray approach bothers me. There really isn’t just “one answer” here & it’s good to respond to the other side, to duke it out some.

    OTOH, as noted by professor Mark Field references, Scalia’s “the other side is simply illegitimate” tone is a problem. The left at times does that too. It isn’t simply enough to say such and such person is wrong; they are just an unprincipled hack that is ignoring the Constitution for policy reasons. Reality is that there are certain decisions to be made here, some good, some bad, but there is no pure “right answer” as appeals to the text or history sometimes suggests.

    Scalia is a representation of a movement there so is somewhat fungible as is someone like RBG or anyone else really. And, a bit of trash talking and snark, like Kagan etc. do, is okay. But, Scalia has been a role model for an approach here that degraded the law and the public discourse for years now. RBG just laughing that sort of thing off annoys me.

  • howard

    i’m slowly becoming convinced that the capacity for so many to opine so rapidly to the death of a public figure doesn’t lead to a collective hyperbolization of the sort that scott is critiquing here.

    • NonyNony

      What? (No seriously – I’m trying to parse that sentence and I’m not quite sure what you’re saying).

      If you mean that a whole lot of people weighing in very quickly about the impact of Scalia’s death leads to hyperbole of argument, well, yeah. I think that’s largely correct.

      As to why it’s hit these levels this quickly – Antonin Scalia was apparently a lot like Ted Cruz in one respect – nobody liked him. He was more willing to be a useful tool of the far right than Cruz is, and so he wasn’t as openly widely reviled as Cruz is, but nobody really liked him all that much. You can really see it in how McConnell bypassed all of the usual “he was a good and decent man and we should all have adequate time to grieve for this lion of an individual” and jumped right into “OHSHITOHSHITOHSHITOHSHIT GOTTA TAKE CARE OF THE POLITICAL RAMIFICATIONS OF THIS CRISIS” mode.

      • petesh

        Notorious RBG would like a word. She’s said it before, too.

      • mikeSchilling

        As to why it’s hit these levels this quickly – Antonin Scalia was apparently a lot like Ted Cruz in one respect – nobody liked him.

        That’s complete nonsense. Scalia and RBG were best buddies (her words.) Nina Totenberg, reporting on his death on NPR, said she considered him a friend. Lots of people have come forward to say that his death is a great personal loss for them. That McConnell went directly to political hardball without even a bit of humanity first says a lot about McConnell, but nothing about Scalia.

        • NonyNony

          Really? People actually liked him and we’re getting this nonsense instead of the usual deification of the dead conservative that we typically get when someone of his stature dies?

          Huh. Weird. I just figured that everyone that claimed to like him while he was alive were just lying about it. But if people really did like him this is a weird turn of events for a political figure of his status.

          • tsam

            No. He and Ginsburg were close friends and socialized outside of work. Apparently he was a likable guy outside of being a really shitty justice.

          • djw

            I’ve seen a bunch of liberal law-types going on about how much they liked the guy personally in the last 48 hours, in addition to RBG. I suppose they could be lying, but I’m not sure how one would going about determining that.

            • brewmn

              I’m sure they’re not lying. But it is extremely depressing that many liberal law-types seem to weigh their personal interactions with Scalia a better indicator of the man’s character than the fact that he routinely issued opinions that immiserated the lives of millions of their fellow citizens.

              I myself would find it very difficult to claim a monster like Scalia a friend, even upon the occasion of his death.

              • Lee Rudolph

                I’m with you all the way.

                • mikeSchilling

                  Another reason RBG should resign!

              • PatrickG

                This word. It is the word. It is, I might go so far as to venture, the bird.

                I’ve now arrived at: The bird is the word.

                More seriously, the arguments I’ve seen defending Scalia as human being are:
                * But he was nice to me, therefore not a bad guy
                * I really liked his writing
                * *crickets*

                The first is indefensible. The second is basically in line with the OP. Basically, it’s a Antonin Scalia as Stephen King argument. He makes horror fun!

            • rea

              I know people who knew him, who were always going on about what a great guy he was, jurisprudence apart.

              Of course, lots of people thought Hitler was personally charming, too.

          • Matt McIrvin

            Charlie Pierce kind of liked him, though he though Scalia’s reasoning had badly deteriorated.

            http://www.esquire.com/news-politics/politics/news/a42134/antonin-scalia-death-charles-pierce/

      • keta

        I think McConnell’s reaction is more a sign of the times than anything else.

        Well, that and kinda’ like when a wild animal hears a gun shot, the first thing it does is poop.

        • Breadbaker

          I think you’re confusing effect and cause. A large portion of the reason the times are like this is Mitch McConnell and his ilk breaking the bonds of decades of bipartisan cooperation with a President.

          • timb

            This. McConnell is personally responsible for a) the proliferation of money in politics and b) the strategy to obstruct Obama no matter what

      • howard

        Yes to your second paragraph. Sorry it was unclear; I was thinking about editing and then got distracted.

  • DAS

    the First Amendment being used to forbid restrictions on campaign spending

    I actually have a particular beef about this. As a state employee, I am not allowed to accept free meals from certain groups: e.g. if I was at a conference in which meals were not included and MegaDeath-ToxicSoup Chemical Corp had a fancy sit-down dinner for attendees, I could not attend the dinner. However, if I were running for public office and my PAC threw a fancy sit-down dinner (with donations for the dinner coming from MegaDeath-ToxicSoup Chemical Corp executives), evidently I have a first amendment right to attend that dinner as part of my running for office.

    IOW, Gov. Christie can get free meals from people because first amendment while, as an Associate Professor at Second Tier NJ U, I cannot take free meals because ethics rules. Admittedly, if I were corrupt and steered chemical or textbook purchases to someone who gave me a nice meal, it would be a huge problem. But whatever corruption I can accomplish would pale next to the corruption possible from someone in/running for higher office. And yet, I am held to a stricter standard.

    Of course, this isn’t just Scalia’s doing. I believe it was Kennedy who made the argument that bribery is legal so long as it isn’t explicitly quid pro quo. And it isn’t just the first amendment “get out of corruption free card” that’s an issue: our ethical standards are explicitly different than the governor’s standards (we have to avoid even the appearance of a conflict of interest; the governor only has to avoid actual conflict of interest) even ignoring the “I’m campaigning loophole”. And the Hatch Act that forbids some people from even being able to run for certain offices (thus they are forbidden from the grifting gravy train even as their bosses are not) well predates the current court.

    But still, Scalia was a particularly callous part of the machinery that has allowed for a “first amendment” protection for corruption that is accessible only to the powerful few.

  • sleepyirv

    Scalia’s legacy will be textualism, not originalism. For law students (as Scalia said, his intended audience), originalism is boring (why on Earth are we talking about Blackstone, 17th Century English Common Law, or Sir Walter Raleigh?) and it led to BLISTERING DISSENTS on subjects kids are in favor of like gay marriage. Moreover, Scalia’s most hackish work was in the constitutional arena. In time, that will make him look a lot worse.

    Scalia was always more straight-forward on textualism. His sharpness served some actual logic usually (though with some infamous counter-examples like the arbitration cases) instead of his biases. I think he entered a Court swung too far towards “purpose” instead of actual text and was a good antidote for a while on that. And it has attractive features for moderate on both sides of the political spectrum, where originalism only makes sense for conservatives.

    It does seems weird that his idiosyncratic thoughts on legislative history might be his biggest legacy, but hey, something of his was bound to stick. Might as well be something relatively harmless.

    • rewenzo

      I find textualism more attractive than originalism because, as a lawyer, I have access to the text. I can read that and make an argument for what it should mean. I’m not a historian and I can’t be expected to dig through historical precedents from sixteenth century England and newspaper articles from Colonial Williamsburg.

      • Mark Field

        Don’t be so modest: originalists don’t do any of that either. They make up just-so stories about what the white male property owners of 1788 were thinking when they read the text.

        • DAS

          Even a group as homogeneous as white male property owners in 1788 were not always thinking the same thing. One of the problems with Originalism is that the Founders may have agreed on the text itself, but they didn’t necessarily agree on its interpretation. When you talk about what a text with multiple authors meant to its authors, the question becomes “which one?”

          • Mark Field

            It’s worse than that. The number of authors was, relatively, small. We also have some textual evidence of at least what they said (but see discussion below re The Federalist).

            What originalists want to do is interpret according to the understanding of the readers. That’s a much larger pool and correspondingly more indeterminate. In addition, we have little to no textual evidence of what they thought.

    • Docrailgun

      Shouldn’t Scalia’s legacy be that he decided that two parts of a sentence separated by a comma have nothing to do with each other (as in Heller)?

    • efgoldman

      Scalia’s legacy will be textualism

      Section 2. The Congress shall have power to enforce this article by appropriate legislation.
      Now, I’m not a lawyer, but that seems pretty plain and unambiguous text to me (15th amendment). Nino and his buddies ignored/eviscerated it pretty well in Shelby County. They didn’t pay a hell of a lot of attention to the legislative history or intent, either.
      He revered the text with which he agreed, or which he could use for a club to beat the other side.

  • timb

    I know it’s been almost 4 years since Citizens United, but I STILL disagree with Scott. Disclosure does not work and the Court swept away 100 years of precedents (ask Montana, where William Clark’s ghost is free to buy anyone who is for sale).

    While I will concede the FEC’s actions were silly (no one thought of banning Fahrenheit 911 in 2004), we have a real problem when corporations are able to fund Super Pacs which clearly coordinate with candidates. We have even a bigger problem with 501(c)(4) and 501(c)(6) organizations whose dark money, anonymous donors are ruining Democracy at the local and state level.

    Kennedy and Roberts were wrong, the outcome of CU is terrible.

    • Joe_JP

      As Rick Hasen of Election Blog notes in his new book, there were various narrow ways the Supreme Court could have decided Citizens United should have won & even the dissent agreed this could have been acceptable.

      The problem for me with the ruling is its scope, especially along with other recent opinions. One reason disclosure doesn’t work is that Congress doesn’t pass a strong enough law there, the DISCLOSE Act, e.g., filibustered though a majority of senators supported it. Anonymous money here is not constitutionally required under Citizens United etc.

      Rick Hasen in his book argued change would depend on the Supreme Court, Alito’s vote itself a BFD. The future is now.

      • Bufflars

        Yeah, seems like it would be prudent for the USSC to be extra cautious and restrained in handing down decisions that rely on Congress to police itself.

    • Scott Lemieux

      Disclosure does not work and the Court swept away 100 years of precedents

      Um, we don’t disagree about this. I said I agreed with the judgement, not the holding.

      While I will concede the FEC’s actions were silly (no one thought of banning Fahrenheit 911 in 2004)

      Well, there’s the rub. If the FEC can suppress Hillary the Movie, why can’t it suppress F 9/11?

      • timb

        What I meant was I think the case is a bigger black mark than you give it credit for. Of course, I also think we need an Amendment making our elections only publicly financed, so I’m an extremist on the subject

  • Tom Till

    I think Scalia’s influence is cultural rather than legal, based in his willingness to publicly say and write combative things about controversial issues, whether in his opinions and dissents, in public speeches, or when he’d pop up in man-on-the-street interviews. He seemed to relish publicly daring the other side to a joust, behavior people don’t normally associate with judges. Compared to the other justices he actively cultivated and maintained a high profile and certain public image and as a result became a mini-celebrity of sorts that average people could recognize.

    • Lee Rudolph

      I think Scalia’s influence is cultural rather than legal, based in his willingness to publicly say and write combative things about controversial issues

      So, in short, he’s to blame for Trump.

      Say…has anyone suggested Trump for the court yet?

      • Joe_JP

        Learn something every day alert: Trump’s older sister is a federal judge.

        • tsam

          She may not want that information shared online.

          (The relation to Trump, not the part about judging)

          • Jean-Michel

            Trump himself has brought her up a couple of times (which I imagine she wasn’t crazy about), and now you-know-who is turning her into a campaign issue because she’s “a radical pro-abortion extremist.” The next logical step is for Cruz to call for her impeachment and then slam Trump and any other Republican who doesn’t agree.

          • Hogan

            Gay Man Tearfully Admits to Being Governor of New Jersey

      • tsam

        Judge Donny. We could hear the cases on TV and settle them on the spot! This is a fucking goldmine–HOW IS THIS NOT A THING YET? Congress is doing it, why not SCOTUS?

      • Snarki, child of Loki

        “…has anyone suggested Trump for the court yet?”

        *I* did.

        But only as a head-fake. If the establishment GOP thought nominating Trump would get him out of the presidential race, they might latch onto him like a drunk with a bottle of vodka.

  • priceyeah

    Excellent article, but the Brennan anecdote is incomprehensible in its current form. Can you expand?

    • Scott Lemieux

      5 votes can do anything.

      • efgoldman

        5 votes can do anything.

        Can they put a human on Mars?
        Cure male pattern baldness?
        Teach bros some manners?

        • rea

          yes.

      • Vance Maverick

        The crux is “figures” for “fingers”.

        • Lee Rudolph

          The thumb is in opposition.

  • James B. Shearer

    I think a post like this would be more interesting if instead of trying to evaluate Scalia’s influence on some absolute scale you compared him to his contemporaries on the court. Like Rehnquist for example. Or do you really think they were all about equally influential, just one vote out of nine?

    • Snarki, child of Loki

      I think it would be difficult to exceed the “Outsized Influence” of Taft.

      • Bill Murray

        gravity is a harsh mistress

  • Crusty

    I think part of Scalia’s outsize influence is down to the appeal of both his philosophy and writing to law students. Scalia’s originalism is something that is easy for law students to latch onto and has tremendous appeal.

  • rewenzo

    As an aside, I’ve never understood the people who scorn legislative history but hold us the Federalist as some kind of authority. Isn’t the Federalist just psuedonymous legislative history – motivated reasoning designed to persuade people to support the Constitution?

    • Dilan Esper

      +1

    • Denverite

      Really? The Constitution and statutes are different. Seems pretty easy to understand to me.

      • rewenzo

        Why are they different?

        • Denverite

          Whole bunch of reasons (they address different subject matters, they have different levels of specificity, etc.), but for Scalia’s purposes, probably the biggest reason is that one can be changed easily and one can’t.

          The whole point of textualism is that if courts interpret and apply a stature as literally written, and that wasn’t what the legislature intended, they can change it. That isn’t the case with respect to a constitutional provision, so you have to try a lot harder to get it right.

          (ETA: That’s the textualist’s position. My own view is a lot less sympathetic to Scalia’s position because (1) I think the text is often quite malleable, (2) prioritizing canons of construction often requires a value judgment, and (3) it’s not so easy to change statutes in this environment.)

          • rewenzo

            Yeah, but isn’t this essentially just an argument that “it’s ok if we get it wrong because Congress can fix it?” That’s not a reason to devalue legislative history, just a reason not to mind getting it wrong. To the extent legislative history helps you get it right, then you should still favor using legislative history.

            Conversely, the fact that the Constitution is hard to change doesn’t make the Federalist more reliable as to what the Constitution means.

            • Denverite

              Zombie Scalia would say “brrrraaaaaiiiiinnnnsss,” then he’d respond that legislative history is inherently unreliable and manipulable and contradictory. The only thing that’s not is the actual black-and-white statutory text. I think he’d concede that it’s problematic in a “worst method of statutory interpretation except all the others” sense. After he ate the brains.

              It’s not a crazy view — my understanding is that it’s essentially how they interpret statutes in most Commonwealth countries (i.e., they didn’t resort to Hansard in England until late in the 20th Century). But IANAIL.

              • rewenzo

                Yeah but anything that’s unreliable about legislative history is just as bad or worse for the Federalist, I would think.

                • Denverite

                  Right, and if it was realistically possible to amend the Constitution to (for example) flesh out how the necessary and proper clause is supposed to work, than looking at what the Founders wrote and said about it wouldn’t be a great idea. But we can’t do that. We have to come up with some way of figuring out what the oftentimes impossibly broad language is supposed to mean two-plus centuries later. One place is the original intent.

                  (It’s not the only place, and it definitely has a host of problems on its own. But it’s not contradictory with a statutory textualist approach.)

                • Dilan Esper

                  So we can use unreliable, bad evidence of “intent”, a mythical concept in the first place, so long as it is 200 years old and we don’t have anything else?

                  That’s a terrible position. This crap is either relevant or it isn’t. (For the most part, I agree with the Scalia position on statutes- it isn’t. Although I would also admit that one reason I don’t think the Federalist Papers should be used is because I think they are full of bullshit.)

                • rewenzo

                  I just don’t see the connection between our inability to flesh out a constitutional clause via amendment and either (i) the desire to find original intent or (ii) any reason to think the Federalist provides you with decent evidence of original intent.

              • Scott Lemieux

                then he’d respond that legislative history is inherently unreliable and manipulable and contradictory.

                Again, the obvious problem with Scalia’s argument is that (at least for appellate cases of any interest) this is equally true of all legal materials, so it’s very silly to arbitrarily ignore one source.

                • Denverite

                  Probably. I’ve just got a sour taste in my mouth from litigating two cases where a legislator pretty clearly put something in the record for the purpose of influencing future litigation that wasn’t (as far as I can tell) consistent with the intent behind the statute.

                • Dilan Esper

                  It’s not really true of text, and it’s also not really true of context, functionalism (making the statutes work in tandem), the rule of lenity, and a number of other canons of construction. Duncan Kennedy was not correct about statutory construction– not everything was indeterminate.

          • sharculese

            My big issue with legislative history is poison pill provisions. If the intent of a provision was to kill the bill, and it passes anyway, what the fuck do we do with that. It’s a very specific case, yes, but it’s the one I always turn to when I need to remember how reference to legislative history breaks down.

      • Joe_JP

        They are in some ways but not sure if they are enough to warrant the importance some op-eds are given to the group cited.

    • sharculese

      Honestly, I would argue it’s less than that. It’s propaganda, written to make the Constitution palatable to people who weren’t necessarily on board with the federalist perspective.

      Which isn’t to say it shouldn’t be paid attention to, it should, because it’s a great insight into how that generation thought of the Constitution, but it’s also why it doesn’t shock me that it’s constantly brandished by people who fundamentally disagree with the Federalists.

      • rewenzo

        Yeah it’s definitely motivated reasoning used by people not willing to attach their names and reputations to it. Moreover, I think Madison later came to espouse completely different views on what the Constitution allowed, which were the opposite of some arguments he made in the Federalist.

        • Joe_JP

          I don’t know about “completely different views on what the Constitution allowed” as much as being surprised by how it worked in practice. This is in large part why the so-called “living constitutionalism” approach makes more sense.

          The essays were spin and weren’t a pure expression of the writers own views. That is going to be hard to obtain generally, but even more so as compared to other sources. Even for someone who wanted to use originalist approaches, which I find dubious myself, shouldn’t rely too much on them. Even on the level of anonymous pamphlets, which were put forth then for various reasons, such as the fear of being challenged to duels.

      • Dilan Esper

        Honestly, I would argue it’s less than that. It’s propaganda, written to make the Constitution palatable to people who weren’t necessarily on board with the federalist perspective.

        This absolutely, 100 percent gets at the problem with the Federalist Papers.

        • sharculese

          Yeah, but to reinforce what I said in my first post, that isn’t to say that I think we should ignore them; just read them with the awareness that this problem exists.

          • sharculese

            And I’m going to expand on this a little right now. I think that, while the Federalist overall should be regarded as propaganda, there’s some good stuff buried inside that those on the left should be willing be bring to our disposal. To this end I’m gonna beat a drum I’ve beaten here before, and bring up a paragraph Hamilton writes in #33. For context (not that I’m assuming anyone needs it, but just in case you do), #33 is concerned with the Necessary and Proper and Supremacy clauses, and is primarily concerned with assuring anti-Federalist that neither will usurp state power. But in the middle of this, Hamilton has this to say about the Necessary and Proper clause:

            But SUSPICION may ask, Why then was it introduced? The answer is, that it could only have been done for greater caution, and to guard against all cavilling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the Union. The Convention probably foresaw, what it has been a principal aim of these papers to inculcate, that the danger which most threatens our political welfare is that the State governments will finally sap the foundations of the Union; and might therefore think it necessary, in so cardinal a point, to leave nothing to construction. Whatever may have been the inducement to it, the wisdom of the precaution is evident from the cry which has been raised against it; as that very cry betrays a disposition to question the great and essential truth which it is manifestly the object of that provision to declare.

            Why aren’t we making people who claim to stand for the legacy of the Federalists explain their relationship to the bolded parts? I know that the answer is that they’re super dumb, but urgh, I just want to make them confront it anyway.

            • Dilan Esper

              The thing is, I agree with you about the principle, but I don’t think the Federalist Papers are either something we particularly want to elevate nor are they the only source of the principle. You can get to the same place by citing to the instructions to the Committee on Detail (N&P was intended to ensure that Congress can address any problem of national scope), which look a lot more like valid legislative intent.

              I’d rather de-emphasize the Federalist Papers (and really, get them recognized as the propaganda that they are). I’m impressed by your detailed knowledge of their contents, however. :)

      • timb

        Exactly, the assholes who cite the Federalist papers today are the philosophical descendants of the Anti-Federalists

  • Dr. Ronnie James, DO

    Won’t Bush v. Gore define his legacy more than anything else? Worst decision of his era, biggest impact, wrong side, etc.

    As for encapsulating his philosophy, Posner’s quote about the [para.] “Six or eight legal dictionaries” Scalia chooses from until he finds a definition that suits his prejudices pretty much nailed him in my book.

    “An undeniably brilliantly and learned jurist who lent his talents to horrible purposes, and really had no excuse for it” will be the CW on him. The Albert Speer/ Leni Riefenstahl/ DW Griffith of Movement Conservatism.

  • tsam

    Scalia has the advantage of a straightforward philosophy and nifty method

    Soooooo inventing your own manner of interpretation that closely mimics that of an 8 year old (because of the utter lack of nuance, ambiguity, original thought, or empathy for actual persons) is “straightforward”? I guess in one sense of the word it is.

  • Dilan Esper

    He had big impacts on sentencing, the confrontation clause, search and seizure, and especially statutory interpretation.

    But Scott is more right than wrong here.

    • Denverite

      Query how much of Appredi and Crawford/Melendez-Diaz/Bullcoming will survive the new justice, regardless of who picks them.

      • Joe_JP

        Not sure really especially since RBG also supports such opinions and Sotomayor/Kagan at least supports a chunk of the material at issue. It is one of those areas where the concerns of the President in making the appointment affects the law in other areas. Scalia’s own votes here show that probably.

        • Cheerful

          Crawford was a big deal at the time, but lawyers have gotten used to it and I don’t really see substantive objections, as opposed to arguing about the line drawing (testimonial vs non testimonial) that you would get with any rule.

          And Crawford was good for defendants – prevented a lot of problematic hearsay from getting in.

          I am not familiar with the back story though, whhether something like Crawford would have happened without Scalia, but it does smack of his basic approach.

          • Dilan Esper

            When Scalia came in, the general thinking on the Confrontation Clause was (1) any hearsay exception adopted by the Judicial Conference or Congress was constitutional; and (2) the confrontation right could be balanced against other concerns, such as the interests of the child witnesses in Maryland v. Craig (which Scalia dissented from).

            Scalia really moved the ball on this issue– his distinctive thinking clearly persuaded his colleagues.

    • Pat

      If only the Fourth Amendment got the same level of deference the Second does!

      • Dilan Esper

        That makes little sense. Kyllo is a much broader protection than Heller.

        Heller is probably going to turn out to only protect the bare right to carry a gun under some form of strict regulation.

    • Scott Lemieux

      He had big impacts on sentencing, the confrontation clause, search and seizure,

      This is true, but it was because of his votes, not his arguments.

      • Dilan Esper

        No, it was in part because of his arguments. He had distinctive views on those issues, different than the Court had articulated before, and persuaded his colleagues.

  • CrunchyFrog

    OT to Scott: If you haven’t read this you should. Very interesting insights into how the draft works and the development of quarterbacks. There is also a couple of paragraphs on Josh McD’s approach to Jay Cutler that show him as even more over the top in 2009 than I’d imagined.

    http://bleacherreport.com/articles/2580349-why-i-drafted-jay-cutler-and-what-happened-from-there

    • Denverite

      I think McDaniels was pretty transparently trying to get Cutler to demand a trade so he could bring in Cassel.

  • The Republicans should totally “Bork” Obama’s nominee. By that I mean, hold a hearing and ask the nominee tough questions about his/her judicial philosophy and judicial opinions and their public statements and record and then hold an up or down vote with no filibuster.

    • tsam

      Rotten bastards with their dirty tricks

  • Just_Dropping_By

    Had Reagan nominated Robert Bork or Ken Starr instead of Scalia, the outcomes in all the cases Pareene mentions would have been the same.

    O Rly?

    http://articles.latimes.com/1989-06-26/news/mn-3114_1_first-amendment-robert-h-bork-court-s-decision

    Bork said he finds it “incomprehensible” that the court ruled flag burning is protected by the First Amendment. Justice Anthony M. Kennedy, named to the court after Bork was rejected by the Senate, cast a swing vote in Wednesday’s 5-4 decision. If Bork had been on the court instead, the 5-4 vote would have gone the other way, he indicated.

    And, considering all the cases Parnee doesn’t mention, I’m pretty sure there’s at least a few dozen other free speech and criminal justice cases that come out with a less liberal result if Bork is on the bench instead of Scalia.

    • Scott Lemieux

      I should perhaps have said “every important case” Pareene mentions. The flag burning vote was a purchasing integrity on the cheap; for all the attention the cases got they were microscopic potatoes.

      • Dilan Esper

        Only if you consider flag burning a one-off.

        Jonhson and Eichmann have been cited by courts for the proposition that there’s a special duty to protect unpopular speech and to strike down regulations that target unpopular speech. You can imagine a world where Johnson goes the other way and then gets expanded over time as more and more speech regulations get upheld.

        I think Scalia’s vote there is important (as was Kennedy’s).

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