Antonin Scalia was, to be sure, a consequential justice: forceful on the bench, forceful in his opinions, forceful in person. Chief Justice John G. Roberts Jr. wrote what could pass for an epitaph when he marked Scalia’s 25th anniversary on the court: “The place hasn’t been the same ever since.”
Despite the effusive praise from the legal right and the respectful tributes from the left, Scalia is unlikely to be judged among the greatest justices of all time. Yes, he leaves important legacies: the “original meaning” method of constitutional interpretation and the “plain text” method of statuary construction. But Scalia never mastered what Justice William J. Brennan Jr. cited as the Supreme Court’s most famous rule: counting to five.
Fittingly, Scalia’s final opinion was a dissent written for three of the court’s conservatives, with Roberts and Anthony M. Kennedy siding with the liberal justices to form the majority. Scalia argued in vain in Montgomery v. Louisiana that state courts did not need to follow federal rules in post-conviction cases and that a four-year-old precedent limiting life-without-parole sentences for juvenile offenders did not apply retroactively.
Scalia wrote few of the Roberts Court’s most important conservative decisions over the past 10 years. Roberts picked Scalia to write the landmark Second Amendment decision, Heller v. District of Columbia (2008), but Roberts was more likely to pick himself or Kennedy or even the junior conservative Samuel A. Alito Jr. in cases where holding five votes together called for more tact than Scalia was likely to display. Examples: Citizens United and other campaign finance decisions.
Apart from his mostly second-tier majority opinions, Scalia made his mark over the past 10 years more with separate opinions or dissents. In the affirmative action case Fisher v. University of Texas (2013), Scalia repeated, along with Clarence Thomas, his view that the Equal Protection Clause prohibits any consideration of race in admissions at public universities. Two votes, not three, four, or five. In Hein v. Freedom from Religion Foundation (2007), Scalia argued, again with Thomas, for going further than the Alito-led conservative majority in limiting taxpayer suits to enforce the Establishment Clause.
Perhaps in his final years, Scalia may have been thinking that at least he could be remembered as one the court’s “great dissenters.” Certainly, he pulled no stops in his dissents. In the same-sex marriage case, Scalia accused the Kennedy-led majority of a “judicial putsch” (Obergefell v. Hodges). In the Affordable Care Act subsidies case, Scalia accused Roberts of “twistifications” in leading the six-vote majority to uphold a financing provision essential to making Obamacare work (King v. Burwell).
Going back further, one must count as well his dissents in decisions recognizing a right to abortion, upholding affirmative action, and reaffirming the Miranda rule on police interrogation. But to be a “Great Dissenter,” a justice needs the posthumous vindication that comes from the adoption of his dissenting view by a later majority. Thus, the first justice Harlan is a great dissenter for his prescient protest against racial segregation in Plessy v. Ferguson, 60 years before Brown. Sixty years from now, Scalia’s most vigorous dissents those on abortion and gay rights are most likely to be seen even more than today as futile cries against advancing liberty and equality.
By all accounts, Scalia was warm, charming, and even funny in person. He and his wife had a famous friendship with his liberal colleague Ruth Bader Ginsburg and her late husband. On occasion, however, he could be indelicately tart toward his colleagues in written opinions. When Justice Sandra Day O’Connor declined in 1989 to provide a fifth vote to overturn Roe v. Wade, Scalia sneered that her opinion “cannot be taken seriously.” In the gay marriage case, Scalia mocked Kennedy’s majority opinion as “pretentious” and “egotistic” and derided the four liberals for joining it. “I would hide my head in a bag,” he wrote, before joining such an opinion.
Scalia fancied himself a committed textualist: committed to the strict meaning of words be they in the Constitution or in a statute. At times, the literalist approach led to results seemingly at odds with his supposed policy views. He took a strict view of a defendant’s Confrontation Clause to crossexamine prosecution witnesses: the result, a new doctrine that limits the use of testimonial statements gathered by police if the witness is unavailable. He also took a strict view of the right to a jury trial, resulting in a line of decisions that fortify juries’ roles in sentencing decisions. And he authored important Fourth Amendment decisions that prohibit police from searching a house with a thermal imager or tracking a car with a GPS device unless they get a warrant first.
At times, however, Scalia’s textualism had its limits. In recognizing an individual right to possession of firearms, Scalia read the prefatory militia clause out of the Second Amendment. In an important mandatory arbitration case, Scalia joined the 5-4 decision in 1991 that effectively nullified the exemption for employment contracts in the seminal Federal Arbitration Act.
Scalia led “a renaissance for conservatives" at the court, The New York Times declared in a headline on the story of his death [Feb. 13]. Yet even after his 29 years as part of a Republican-appointed majority on the Rehnquist and Roberts courts, the conservative backlash against liberal rulings of the Warren and Burger courts has been no more than partly successful. In death, one must imagine that Scalia will be unable to rest in peace.