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.