Former Clerk on Justice Antonin Scalia and His Impact on the Supreme Court
I was in Washington, D.C., over the weekend to attend memorial services for my old boss, Justice Antonin Scalia.
As one of his former clerks – 15 years ago now – I met his casket on the steps of the Supreme Court on a chilly Friday morning and witnessed thousands of people standing in line for three hours or more to get a brief glimpse of the casket inside. On Saturday, I saw thousands more pile into the Basilica of the National Shrine of the Immaculate Conception for his two-hour memorial mass.
All weekend long, I was reminded of the justice’s charm, his humor and his razor-sharp intellect. When with the justice, there was never a dull moment.
But more than anything, the weekend reminded me of something else: the justice was not just a judge; he was the leader of a successful movement – and that movement, in my view, will continue long after his death.
Keeping judges in check
Justice Scalia sought to persuade us that unelected judges in a democracy should keep their lawmaking to a minimum. And he thought his philosophies of originalism and textualism were the best ways to determine when judges strayed too far.
Both originalism and textualism instruct judges to interpret the law as people at the time the law was written would have understood its words, not to “update” the words by trying to figure out what people today would want the law to say. Justice Scalia thought we already had a mechanism to update our laws: the democratic process. He thought judicial “updating” too often enabled unelected judges to substitute their own policy preferences for those of the American people.
Justice Scalia did not invent these philosophies, nor was he the first to recognize the uneasy place of unelected judges in a democracy. But he was by far the most powerful spokesman these ideas have ever enjoyed.
The key to Scalia’s success was that he was only one part judge. He was also one part legal philosopher and one part activist – an activist against judicial activism.
He wrote articles, authored books and delivered speeches all designed to reach as many people as possible. His writing style was accessible and provocative – for some, too provocative – because he wanted to attract attention to his ideas. He even wrote his opinions like speeches, which is why he liked to read them aloud as he crafted them.
It is true that Justice Scalia was not on the winning side in many of the court’s biggest cases, and he never converted many of his colleagues to his philosophies. But movements are about something bigger than winning a handful of cases today; movements are about the long run. And Justice Scalia may have forever changed how the judiciary, the academy and even the public think about the law.
Three spheres of influence
Consider first the judiciary. Scholars have found that judges – even those who do not subscribe to Scalia’s philosophies – started doing their jobs differently after he joined the court in 1986. For example, over the last 30 years judges have more often cited in their opinions textualist and originalist materials such as dictionaries and the Federalist Papers and less often competing materials such as legislative history. As Professor Frank Cross found in a study of lower court judges: “the most striking result is the extremely high rate of citations to Justice Scalia’s opinions.”
Consider next the academy. To be sure, originalists and textualists are still a small minority in the academy, but the appeal is growing. There are now two academic centers – one at Georgetown and one at the University of San Diego – devoted entirely to the study of originalism. And the growth has been nonpartisan. So-called “new originalist” scholars are now using Scalia’s philosophies toward liberal ends.
Consider finally the public. Scalia’s philosophies are so easy to explain and understand that, now, when conservative politicians are asked what kind of judges they will appoint to the bench, they almost always say only originalists and textualists “like Justice Scalia and Justice Thomas.” Liberal politicians tend to avoid invoking interpretive philosophy altogether, and, instead, focus on case outcomes. Thus, to the extent the public is exposed to any legal philosophy at all, it is usually originalism and textualism.
Some people have wondered whether Scalia’s influence will continue after his death. In my opinion, it will. Not only do his ideas have simplicity and elegance, but Scalia left behind a secret weapon: an entire organization dedicated to furthering his philosophies. This organization, the Federalist Society, was cofounded by Scalia himself while he was still a law professor at the University of Chicago, and its members now number in the tens of thousands – including me. Perhaps even more than his books, speeches, articles and opinions, his Federalist Society will ensure that his legacy continues in perpetuity.
No other justice of the Supreme Court has ever before left behind an entire organization dedicated to his or her ideas. But, then again, no other justice has ever been like Justice Scalia.