Thursday, February 18, 2016

The Legacy of Justice Scalia

A lot of ink has been spilled about Justice Scalia over the last five days. Harvard Law Professor Noah Feldman has written two interesting columns, Cass Sunstein (another Harvard bloomberger) also wrote a thoughtful and nostalgic take on the late justice, and his former law clerk and current Michigan Supreme Court Justice Joan Larsen contributed a moving op-ed in the New York Times. Irin Carmon wrote about Scalia's famed friendship with the great liberal Justice Ginsburg while Stephen Carter has lamented the lack of civility of Justice Scalia's detractors in the wake of his death. A number of other smart pieces have been written. There is only so much I can add when so many insightful obituaries have been written, but let me just pitch in a few thoughts.

1. Clarence Thomas began trending on Twitter following Scalia's death. A lot of tweets were published along the lines of "How is Thomas going to know which side to take now?"; "Who will Clarence Thomas get his homework from?"; "Who's going to adopt Clarence Thomas?" and so on. I think these tweets, quite frankly, have some disturbing racial undertones. I don't hear anyone on either side of the aisle claiming Justice Kagan is a pawn of Justice Ginsburg, even though they have parted ways fewer times over the last few years than Justice Thomas and Justice Scalia. But then she's a female Jew siding with another female Jew. Justice Thomas, not so much.

Followers of the Court know that Thomas is more conservative and more originalist than Justice Scalia ever was. This may not be a good thing- indeed I think its bad- but the notion that Clarence Thomas can't think for himself is ridiculous. Just last term, he parted with Scalia and joined the liberals on two big cases. In Walker v. Texas, he upheld a state's ability to forbid the issuing of license plates with confederate flags on them. And in Zivotofsky v. Kerry, an important but under discussed case, he determined that the executive branch has significant power over when and how to recognize other foreign nations. Justice Thomas is his own man; he may have lost a colleague and a friend but he won't be lost in the wilderness without Justice Scalia.

2. Others have pointed this out, but I think there is a big difference between the first fifteen years of Justice Scalia on the Court and the last fifteen. Justice Scalia used to be a renegade; he was a social conservative and an originalist, but he would allow his decisions to follow his constitutional interpretation. He determined that flag burning was permissible political speech and often sided with criminal defendants in 4th Amendment cases. Over the last ten years though, Scalia, more than any member of the Court, was a politician in robes.

3. I think law professors have been a little too easy on Justice Scalia. Whereas the public and the political world are completely results driven, law professors tend to care about contributions to constitutional theory and decision consistency. This is a good instinct and law professors see important things that even knowledgeable members of the public can't spot. But I would highly contest the notion that Justice Scalia was a great justice because he pushed an innovative constitutional theory and turned it mainstream. Was he incredibly influential? Certainly. A brilliant writer? Without a doubt. But a great justice? Hardly. On the biggest decisions of his career- Bush v. Gore, NFIB v. Sebelius, D.C. v. Heller, Obergefell v. Hodges- he has consistently come out on the wrong side. A great justice he was not.

4. First and foremost, everyone should remember Justice Scalia was a human being. Indeed, by all accounts he was a charming, funny, and brilliant person. He may have been wrong, but he was not evil. May he rest in peace.


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  2. For one to be a "great justice," they have to be "right"?--whatever right means.

  3. Fair point- basically I am putting out my priors here without supporting them. But I don't want to relitigate the Court's biggest decisions in this little post.

  4. Ultimately, history will judge who was "right". But I think even Scalia realized Bush v. Gore is a stain on the Court and that history was turning against him on the gay marriage question.