Over the next few months, the Supreme Court seems poised to deliver a crushing blow to public sector unions, allow more purges that remove eligible voters from the rolls, limit anti-discrimination laws protecting the LBGT community in the name of protecting religious freedom, and uphold the latest version of Trump’s travel ban. And while the court may, for the time being, put the brakes on the most egregious forms of partisan gerrymandering, that result may be short-lived, as rumors recirculate that swing Justice Anthony Kennedy could soon announce his retirement. That would give President Trump the chance to put another judge like deceased Justice Antonin Scalia on the court, creating a more solid five-justice conservative majority.
Indeed, contrary to the argument of a recent Linda Greenhouse New York Times column proclaiming that Justice Scalia’s legacy is fading, his legacy only seems to be growing. Over the next few decades, Justice Scalia is likely to have greater influence in death than life.
As I explain in my new book, The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, Justice Scalia’s influence on the court certainly seemed small by the usual measures. Aside from his 2008 Second Amendment and gun rights opinion, District of Columbia v. Heller, Scalia wrote few blockbuster majority opinions outside the area of criminal procedure. He wasn’t, like Kennedy, the swing justice on the court, the crucial fifth vote moving it from one side or the other of contentious issues. He was mostly a reliable conservative vote on the most important issues of the day, from abortion rights, to same-sex marriage, to the constitutionality of voter ID laws.
Where Scalia got his influence, though, was through his ideas and the sheer force of his writing. He declared that he had found neutral tools that justices must use to decide constitutional cases (public meaning originalism) and cases interpreting the meaning of federal statutes (textualism). Never mind that he was not a consistent originalist or textualist, often ignoring the methodology or finding a way around it to reach a (usually conservative) result.
He wrote his opinions—especially his dissents—in a forceful and entertaining way, gaining them disproportionate attention in the public, press, and law schools. He was an in-your-face sarcastic justice who did not fear insulting his colleagues, even—and perhaps especially—the swing justice. Take his 2015 dissent in the Obergefell same-sex marriage case, authored by Kennedy:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
His nastiness toward other justices was not (simply) ad hominem: It was aimed at arguing that any justices who did not follow his methods of originalist and textualist interpretations were not acting legitimately as judges but were acting as superlegislators.
Now in death, Scalia’s influence is even stronger. Justice Neil Gorsuch, the newest Supreme Court justice, has not only pledged fealty to Scalia’s methodology; he has also tried to emulate his snarkiness (although so far without much success in replicating Scalia’s charm). You could almost see Gorsuch harkening back to Scalia when he admonished his colleagues in a statutory-interpretation case: “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” And at an oral argument in the 2017 Wisconsin partisan-gerrymandering case, he dismissively interjected that “Maybe we can just for a second talk about the arcane matter, the Constitution.” Gorsuch is likely to continue the effort to delegitimize any judge or lawyer who does not follow Scalia’s vision.
He is just the tip of the iceberg. The Federalist Society, which Scalia helped found, has created a farm team of judges and lawyers who all seek to advance the Scalian vision. It is now conservative orthodoxy to pledge allegiance to Scalia’s methodology, and the great commercial success of a recent collection of Scalia’s speeches shows the deification of the justice proceeds apace. The Trump administration has essentially outsourced the choice of federal judges to the Federalist Society, and Trump was recently secretly recorded talking about his hopes for putting 145 new federal judges on the bench.
If Justice Kennedy announces his retirement in the spring, there is no question that Senate Majority Leader McConnell will get through a Scalia clone before the 2018 midterm elections.
If and when Trump has an opportunity to replace Kennedy, Chief Justice John Roberts, a strong conservative, will become the new swing Justice. Much more of Scalia’s vision would then become a reality. In the area I study most closely, election law and the law of democracy, it would mean that individuals, corporations, and other domestic entities would be able to give unlimited contributions directly to candidates for office. Legislatures would be able to draw legislative districts for full partisan advantage, ignoring any requirements in Section 2 of the Voting Rights Act and limited only by a requirement that race not be the predominant factor in redistricting. Politicians would be able to use public employment decisions to reward the loyal and to punish those who belonged to the wrong political party. State legislatures would be allowed to make it much harder for some people to register and vote, so long as the laws did not burden most people. Congress would have only limited power to assure that racial and ethnic minorities have fair representation in legislative bodies. Consumers and labor unions would have much less ability to protect their own interests against those of corporations.
People often ask me why the left never gets as excited about control of the court when it comes to voting and political action. The answer is that the court’s decisions have been mostly in the middle thanks to swing justices like Kennedy—about half the court’s decisions in big cases have been more liberal, about half more conservative.
All of that stands to change in the next few years. Even if Justice Kennedy decides to hold on, and Democrats miraculously can block another Trump appointment to the Supreme Court, the stacking of lower-court judges with Scalia acolytes will have effects on all Americans for generations. That may finally wake up the left to the power of the federal courts. By then, though, it may be too late to do anything about it.
Justice Scalia’s fading legacy? I’m afraid not.