For the United States to lose one of its sitting Supreme Court Justices to death is an uncommon tragedy, happening last with Chief Justice Rehnquist in 2005 and, before that, with Justice Robert Jackson in 1954 (though a few retired very shortly before their passing). For a law student, the event is strangely personal. The loss is not merely of some black-robed judge, distant and otherwise disconnected from our lives. The loss is of a scholar, a mentor, and a professor. And what a professor has been lost in the passing of Justice Antonin Scalia.
As law students, we learn of the law principally through the jurists who determine and espouse its meaning. Case law is our principal teacher. When well-written, case law teaches us how to reason like lawyers, it highlights areas of disagreement, and, in the words of Chief Justice John Marshall, shows us “what the law is.” Dissents provide the counter position, while concurrences provide alternative reasoning. This, along with the text of the regulatory, statutory, and constitutional provisions in dispute, is the background of American legal education. Our professors in the classroom—who were taught in the same manner by the same jurists—serve principally to bring it to the foreground, to challenge it where it can be challenged, and to distill its lessons into a digestible form.
In the case of Professor Scalia, referred to as “Nino” by my professors and those who knew him personally, his lessons were frequently deep in their implications and controversial in their conclusions. Their influence, however, is difficult to overstate.
First, he adhered to what was, in his early tenure, an uncommon jurisprudential philosophy called “originalism,” which holds that the text of the law should be interpreted as it would have been interpreted originally. (There are two chief shades of this theory known as “original intent,” which is that the law means what it originally meant to the drafters, or “original meaning,” which is that the law means what it originally meant to the public.) That philosophy has since taken root and spread across the legal field. Though I hold some disagreements with the theory of originalism (and will direct readers to Dr. Tara Smith’s Judicial Review in an Objective Legal System for the valuable alternative it offers), Scalia’s propagation of originalism deserves a great deal of credit for shifting legal interpretation towards its ultimate source: the text.
In facilitating that shift, law professors often note that Scalia is almost single-handedly responsible for “legislative history” falling into disfavor as a tool of legal interpretation, and he described searching for the meaning of law in floor debates and committee reports as “looking over the faces of the crowd at a large cocktail party and picking out your friends.”
In his concurrence in Citizens United, he noted that “[t]he [First] Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker . . . .” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 392 (2010) (Scalia, J., concurring). He voted to uphold flag burning as protected speech in Texas v. Johnson, 491 U.S. 397 (1989). In Dist. of Columbia v. Heller, he held that the Second Amendment “codified a preexisting right” and “guarantee[d] the individual right to possess and carry weapons in case of confrontation.” Dist. of Columbia v. Heller, 554 U.S. 570, 592 (2008) (emphasis original). He was a frequent defender of Fourth Amendment rights, writing majority opinions banning the use of thermal imaging devices to search houses without warrants, Kyllo v. United States, 533 U.S. 27 (2001), and prohibiting the use of drug sniffing dogs on private property without warrants, Florida v. Jardines, 569 U.S. ___ (2013). He is credited with breathing new life into the Sixth Amendment’s Confrontation Clause, and maintaining it against conservative opposition. See, e.g., Crawford v. Washington, 541 U.S. 36 (2004). And, in many places, Scalia authored fiery, impassioned dissents against what he viewed as an impermissible distortion of the law’s meaning to achieve a political end, see, e.g., King v. Burwell, 135 S. Ct. 2480, 2496-2507 (2015) (Scalia, J., dissenting), or as an abrogation of constitutional rights, such as with police collection of DNA from arrestees, Maryland v. King, 569 U.S. ___ (2013). Such lessons were generally well-received by a capitalist law student.
But as with all professors, not every lesson is equally enlightening nor equally agreeable. For example, Scalia’s intransience on abortion cases, due to the Constitution’s textual silence on the issue, consistently failed to account for the Ninth Amendment—which explicitly notes that the Constitution protects unenumerated rights as well as enumerated ones. His dissent in the Obergefell gay marriage case similarly struggled to explain why the extension of state-backed privileges to some and not others was not a denial of “equal protection” under the Fourteenth Amendment.
Do such stances deserve special critique and refutation? Of course. Do they diminish the value of his other opinions? No. Just as all the justices currently sitting on the bench have written good opinions, so too have they written bad ones. Most circumspect law students recognize this, and one would be hard pressed to find a single law student who cannot find something of value somewhere in each of the justices’ corpus of opinions.
As Justice Kagan noted while Dean of Harvard Law School, “[Scalia’s] views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country. He is the justice who has had the most important impact over the years on how we think and talk about law.”
Ultimately, views on the value of Justice Scalia’s legacy will be just as numerous and mixed in the year 2116 as they were on his last day of life in 2016. But make no mistake—a century hence, Scalia will still be teaching law students through the opinions and reasoning that he left us as a personal legacy and a testament to the country he so clearly loved and admired. Though he can never again raise his pen to write, so long as the Constitution of our republic remains the Law of the Land, he will continue to enlighten us for generations to come.