“My only agenda is to be a good judge.” –Antonin Scalia, in his 1986 Senate Judiciary Committee confirmation hearing
I wrote this article for The Weekly Standard in 2006 and am republishing it here this week in light of the fact that we have a new Justice—Brett Kavanaugh—and he is a jurist who has echoed Scalia’s aspiration, that of being a good judge. Forgive the length of this piece, but it does cover many things about Scalia that are worth knowing: what the judicial power is, what originalism and textualism are, what the Living Constitution is, and why we should prefer the dead one, as the Justice joked.
We know the good judge the country had in Scalia. Now we’ll see if Kavanaugh proves to be one as well.
During this time of conservative angst, of worry about what conservatism stands for and means, why not consider the contribution to the country of someone who is not a politician but a judge–actually a justice of the Supreme Court–appointed by President Reagan back when things were good (or at least so memory tells us)? Antonin Scalia is this man. This past summer he con cluded his 20th term on the Court, a milestone reached by only 36 of our 109 justices. Among current justices, only John Paul Stevens, appointed in 1975, has served longer. Scalia, 70 and in good health, may well join the handful of justices (including Stevens, 86) whose High Court tenures lasted at least three decades.
Born the only child of Eugene and Catherine Scalia in Trenton, N.J., and raised in New York City, Scalia went to St. Francis Xavier, a military prep school, and then to Georgetown University, where he finished first in his class. At Harvard Law, he was note editor of the school’s law review. Graduating magna cum laude in 1960, he worked in a top-tier law firm, taught at the University of Virginia law school, and served in the Ford Justice Department as assistant attorney general in charge of the Office of Legal Counsel, where some of the department’s finest lawyers work. After that he spent five years on the faculty of the University of Chicago law school while also editing Regulation magazine.
During the Reagan presidency, Scalia was an obvious choice for a seat on an appeals court, and in 1982 Reagan named him to the U.S. Court of Appeals for the District of Columbia Circuit. Seemingly, there was only one more place Scalia could go, and that was several blocks up the street to the Supreme Court, where Reagan sent him in 1986. He was confirmed by the Senate 98-0, fittingly, on Constitution Day, September 17.
Scalia is deservedly held in high regard for his intellect and wit and writing ability. He compares favorably with two of the Court’s greatest stylists, Oliver Wendell Holmes and Robert Jackson. Of his 635 opinions so far, a large number–beginning with his solitary dissent in the 1988 case sustaining the independent counsel statute, Morrison v. Olson, a dissent already vindicated by the passage of time–will be taught in law schools many decades hence. Scalia’s opinions are essential in evaluating his work, to be sure, but to see his unique contribution as a justice, it is necessary to place his arrival at the Court in historical context. Someday it may be said of Scalia that he was the justice who pioneered the effort to put the text back into statutory law, and the Constitution back into constitutional law.
Judges make their appearance in Article III of the Constitution, which vests “the judicial power” in “one Supreme Court” (and in such inferior courts as Congress may ordain and establish). This power extends to “all cases, in law and equity, arising under” the Constitution, federal statutes, and treaties. It is a power that entails interpretation and application of those laws. And it is a power that the Framers understood as limited. Judges, they believed, shouldn’t make law, since that authority belongs to the people and is to be exercised through their elected representatives.
More than a century ago, in the hands of the Supreme Court, the judicial power began to undergo a transformation that was well advanced by the time Scalia was in elementary school. In the 1986 book tracing the evolution of the judicial power, published just as Scalia joined the Supreme Court, political scientist Christopher Wolfe described the emergence of “judge-made law,” which, against the hopes of the Framers, had become “another variant of legislative power.”
The growth of judicial power is in an important sense a story of liberties taken with texts–specifically of the refusal by justices to follow the text of laws as understood at the time of their enactment and of the willingness by courts to “interpret” the law in light of various extratextual considerations. The kind of text in a given case–statutory or constitutional–did not matter. The result was the same: The people’s text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges’ text. The justices became lawmakers.
The change in judicial power drew a political response in 1964 when Barry Goldwater, the Republican presidential candidate, called the Court the “least faithful” of the three branches to “the principle of legitimacy in the exercise of power.” That marked the first time in the 20th century, writes Lucas Powe in The Warren Court and American Politics, that a major party presidential candidate made the Court a campaign issue. Scalia, as it happens, voted for Goldwater, who objected in particular to the Warren Court’s criminal procedure decisions.
In 1968, Richard Nixon also campaigned against those same decisions, which now included the 1966 case of Miranda v. Arizona, arguably the Warren Court’s most controversial, in which it set forth policy governing police interrogations of criminal suspects, one that all 50 states had to follow. Miranda was a constitutional case, but the opinion said little about the relevant Fifth Amendment text. It had, as Lucas Powe points out, an obvious “legislative quality” to it. Having vowed to choose judges who were “strict constitutionalists” and promising in particular not to pick as a justice a “super-legislator with a free hand to impose social and political viewpoints upon the American people,” Nixon appointed four justices during his first term. But soon it was apparent that only one, William Rehnquist, was much of a threat to the expansive understanding of judicial power and to the decisions like Miranda that it had generated. Indeed, it was the Supreme Court shaped by Nixon and a Democratic Senate that declared a constitutional right to abortion in the 1973 case of Roe v. Wade–a decision that invalidated virtually every state law on abortion.
In 1980, Ronald Reagan also promised to appoint constitutionalists, men and women who would interpret the law and not rewrite it. The Reagan years saw intense controversy about the proper exercise of the judicial power–even before the failed nomination in 1987 of Robert Bork to the Supreme Court. But of the three new members Reagan named to the Court–Sandra Day O’Connor in 1981, Scalia five years after that, and Anthony Kennedy in 1988–only Scalia has undertaken to challenge the transformation of judicial power.
Indeed, Scalia’s tenure on the Court may be understood as an exercise in standing athwart history yelling stop–athwart the decades-long succession of cases by which the judicial power was transformed and the justices became lawgivers. During his confirmation hearing in 1986, Scalia told the Senate Judiciary Committee, “My only agenda is to be a good judge.” It is clear in retrospect–if it was not at the time–that “a good judge,” to his mind, was not the sort that had often preceded him to the High Court.
Scalia’s view of what a good judge is starts with the fact that ours is a constitutional democracy. We are a people (Scalia would say) who have chosen to govern ourselves through a written Constitution to which we have not assigned every authority, as we have left some to the states. (Federalism is what we call this dual sovereignty.) We have taken the legislative, executive, and judicial powers, and vested them in, respectively, Congress, the president, and the judiciary. And while Congress and the president share in the exercise of some powers–for example, the president and the Senate share the power to appoint (but not to nominate) judges–the judiciary does not. It exercises only the judicial power. And, in cases of law, for Scalia as for the Framers, the judicial power is the power to interpret the law, not to make it. It is telling that the title Scalia chose for the 1997 book collecting the Tanner Lectures he gave at Princeton in 1995, in which he set forth his view of judging, is A Matter of Interpretation.
With regard to statutory interpretation, Scalia says that a judge should gather the meaning of a statute from the text of the law, that is, its actual words. A non-lawyer might think this is to state the obvious. But in the 1940s, the U.S. Reports began to thicken with cases in which the justices “interpreted” a statute by moving beyond its text to its supposed “intent” or “purpose” or “spirit,” which they often found in the statute’s legislative history–statements made in floor debates, committee reports, and committee testimony. In Antonin Scalia’s Jurisprudence, published earlier this year, political scientist Ralph Rossum identifies 10 major cases decided during the decade before Scalia was appointed in which the Court “displaced the plain meaning of the statute in question with what it took to be the intention of the legislature that it had gleaned from the statute’s legislative history.”
One such case was United Steelworkers v. Weber, decided in 1979. At issue was whether a racial quota in employment violated Title VII of the Civil Rights Act of 1964. Title VII is an unambiguously colorblind statute, demanding nondiscrimination on account of race. Yet the Court (with Justice William Brennan writing) derided “literal interpretation” of the statute and said that the prohibition of nondiscrimination must be read “against the background of the legislative history of Title VII and the historical context from which the Act arose.” Having assumed the legislative reins, the Court proceeded to rewrite Title VII to permit discrimination.
This kind of freewheeling statutory interpretation can be found in the late 19th century. In his Tanner Lectures, Scalia held up The Church of the Holy Trinity v. United States, decided in 1892, as “the prototypical case involving the triumph of supposed legislative intent over the text of the law.” The case is remarkable not least because the Court got the meaning of the text right before it found multiple ways around it.
The facts were simple: A New York City church contracted with an Englishman to cross the ocean and be its rector and pastor. The government said the contract vio lated a federal statute making it illegal for any person to “in any way assist or encourage the importation or migration, of any alien, . . . into the United States, . . . under contract or agreement . . . made previous to the importation or migration of such alien . . . to perform labor or service of any kind in the United States.” The government won but the church appealed, and the Supreme Court engaged in a Scalia-like analysis of that text and the larger statute of which it was a part to conclude that the contract indeed violated “the letter of the law.” Whereupon the Court declared its inability to believe that “Congress intended to denounce with penalties a transaction like that in the present case.” And so the Court interpreted the law according to “the intent of the legislature,” which it gleaned from a variety of sources including “the reports of the committees of each house.” In a huge extratextual leap, the Court also said the law couldn’t have been intended to bar the church’s transaction with said alien rector. After all, “no purpose of action against religion can be imputed to any legislation, state or national, because this [the United States] is a religious people.”
Church of the Holy Trinity has long stood for the principle that, as the Court put it, “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” One reason the case stands out for Scalia is that, as he observed in the Tanner Lectures, it “is cited to us whenever counsel wants to ignore the narrow, deadening text of the statute, and pay attention to the life-giving legislative intent. It is nothing but an invitation to judicial lawmaking.
For Scalia, the right kind of judging is much different. It construes the text of the statute, he says, neither “strictly” nor “liberally” but “reasonably.” The judge–the good judge–should ask what the statute meant to the legislators who enacted it and the people whom it obligates and also–as the Court did in Holy Trinitybefore it went off the rails–understand the statute in terms of the law or code of which it is a part. Dictionaries, including ones from the era in which the law was enacted, may prove helpful.
And why not repair to “intent” in determining the meaning of a statute? Legislators, says Scalia, have many different reasons (or none at all) for voting for a bill, defeating the possibility of any singular or collective intent. And the sources judges typically turn to in search of legislative intent–in the legislative history–can’t be taken at face value, given that such history has been known to be manufactured to serve strategic purposes, including that of trying to persuade a judge open to it. But even assuming that legislative intent can be found, Scalia objects to it for a fundamental reason: It’s not been passed by both houses and presented to the president for his signature, as Article I of the Constitution requires a law to be. In short, it is not a law–a point humorously made in a concurring opinion by Scalia: “We are a Government of laws, not of committee reports.”
For Scalia, the starting point for constitutional interpretation is recognition that the Constitution, as he put it in the Tanner Lectures, is “an unusual text.” It is the supreme law through which we govern ourselves and thus does not contain “nit-picking detail” (which detail is found in the mind-numbing U.S. Code). Its words and phrases should be given, says Scalia, “an expansive rather than narrow interpretation–though not an interpretation the text will not bear.” Not “strict construction” but “reasonable construction” is the goal.
Here, too, Scalia is a textualist, since he starts with a legal text, the Constitution. And he is an “originalist,” since he seeks the “original meaning” of the text. He does so not by pursuing the subjective intentions of individual framers, but by asking how the text was understood by the society that adopted it. Nor is Scalia unaware of the difficulties posed by originalism, for as he said in his Taft Lecture at the University of Cincinnati in 1988, “historical research is always difficult and sometimes inconclusive.”
Scalia emphasizes that the Constitution not only contains explicit declarations of individual rights but also sets forth structural principles, chief among them federalism and the separation of powers. We govern ourselves through the Structural Constitution, as it has been called, but it also protects our liberties. For Scalia, a judge–a good judge–enforces the entire Constitution, including its structural principles.
Scalia qualifies his textualist approach when the original meaning of a provision is inconclusive. A good judge, in his view, will not take the lack of clarity as an invitation to make law but instead consider legal tradition–common law decisions and laws enacted by the states, in particular. If an asserted right has support in those traditional legal materials, then a judge should acknowledge it. If, on the other hand, the challenged government practice has support, a judge should sustain it. Scalia felt compelled to do that in a 1990 case in which he was in the minority. As he explained, “When a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.”
For obvious reasons, Scalia’s constitutional jurisprudence is often described as one of “text and tradition.” Indeed, he has often put it that way himself. But it bears emphasis that, for Scalia, nothing other than text and tradition is relevant to the task of interpreting the Constitution. Scalia explicitly rejects resort to natural law, however defined, and international law. The Court’s citation of foreign law in a 2002 case drew a witty response from Scalia. Having in mind Chief Justice John Marshall’s famous statement “We must never forget that it is a constitution we are expounding” ( McCullochv. Maryland, 1819), Scalia wrote: “We must never forget that it is a Constitution for the United States of America that we are expounding.”
Scalia’s approach to constitutional interpretation stands in contrast to that which came to dominance more than a half century ago. Indeed the transformation of judicial power such that it became, to recall Wolfe’s description, “another variant of legislative power” most visibly and notoriously occurred in constitutional cases.
An important piece of that story concerns the Court’s view of the clause found in the Fourteenth Amendment guaranteeing that no state shall deprive a person of life, liberty, or property “without due process of law.” The due process clause–also in the Fifth Amendment, where it limits the federal government–originally meant that government must satisfy certain procedures when moving to deprive an individual of life, liberty, or property.
But in the early 20th century, the Court read the clause to impose not merely procedural but also substantive limitations on government power. In a 1905 case, Lochner v. New York, for instance, the Court, citing the “liberty of contract,” struck down a New York state law limiting the hours that bakery employees could work. The Court eventually abandoned “economic substantive due process.” But it didn’t give up the idea that “substance” of some kind–not found in the text or history of the Constitution–may be poured into the due process clause. And in the 1960s and early 1970s, personal choice and privacy became the new substance so protected. Indeed, Justice Harry Blackmun’s opinion for the Court in Roev. Wade located the abortion right in the due process clause of the Fourteenth Amendment. As one might expect, Scalia has issued a comprehensive indictment of the doctrine: “The entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called ‘substantive due process’),” he wrote in a 1999 case, “is in my view judicial usurpation.”
Substantive due process was only one tool among many by which judicial power was transformed. And in the era of transformation, the Structural Constitution didn’t seem to matter much. The Court tended to leave questions of federalism to the political process. As for the separation of powers, it treated the legislative and executive branches not so much in terms of their distinctive character, but as authorities that might be commingled to accomplish desirable governmental results.
Scalia has a simple way of capturing what happened to constitutional interpretation. It came to serve the “Living Constitution,” which Scalia defines as “a body of law that (unlike normal statutes) grows and changes from age to age, in order to meet the needs of a changing society.” Justices who embraced the Living Constitution were often candid about its evolution and their role in bringing it about. In Trop v. Dulles (1958), the Court said that “the words of the [Eighth] Amendment are not precise . . . their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Eight years later in Harper v. Virginia Board of Elections, the Court observed that “we have never been confined to historic notions of equality” and that “notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.” In opposition to the Living Constitution, Scalia once declared: “I defend a dead Constitution.” Scalia is quick to point out that the “dead Constitution” contains an amendment process by which Americans, and not judges, can alter the Constitution in order to meet “the needs of a changing society.”
In statutory as well as constitutional interpretation, Scalia believes that judges, as much as possible, should articulate and enforce general and clear rules. Such rules provide notice and certainty to citizens who live under law. They also ensure equal protection. They provide guidance to the lower courts. And they constrain judicial discretion. Scalia summed up his belief in general rules in the title of his 1989 Holmes Lecture at the Harvard Law School: “The Rule of Law as a Law of Rules.”
For Scalia, the rule of law tends to come apart when judges employ complicated tests that require them to balance various facts. He is a formalist who came to the Court when formalism was, to put it mildly, hardly in fashion. “Long live formalism,” he said in his Tanner Lectures. “It is what makes a government a government of laws and not of men.”
In his first year on the Court, Scalia made clear his textualist approach in statutory cases when he wrote a concurrence challenging the majority’s willingness to accept a certain doctrine. The doctrine was that if a statute’s legislative history reveals a clearly expressed intention contrary to the language of the text, the Court then must question, as the majority put it, “the strong presumption that Congress expresses its intent through the language it chooses.” Wrote Scalia, “Judges interpret laws rather than reconstruct legislators’ intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent.”
In his treatment of Scalia’s opinions in statutory cases, Ralph Rossum reports only two in which the justice actually deviated from his own methodology and cited legislative history. For the rest, Scalia has practiced what he preaches. Moreover, he has taken pains not to join any opinion or part of an opinion that relies on legislative history. In a recent case, for example, David Souter’s opinion for an otherwise unanimous Court rested on the text but also included five footnotes citing various bits of legislative history. In a concurrence, Scalia ripped into each of the notes, calling the legislative his tory “utterly irrelevant.”
On this issue, some justices may well find Scalia a real pain in the keister. But he has had a major impact. Before Scalia’s appointment, in almost every statutory case, the Court might start with the text but then would move quickly to legislative history. Today, while it is true that few justices have abandoned legislative history, they consult it less frequently, says Thomas Merrill, professor of administrative law at Columbia, and with less conviction. “Through the sheer force of his argument and personality, the verve with which he reiterates his points,” Merrill told me, “Scalia has made other justices much more sensitive to the problematic nature of legislative history.”
Scalia’s insistence on careful parsing of the text has been rewarded with discussions among the justices that were not common 30 years ago. In AT&T v. Iowa Utilities Board(1999), the Court grappled with the meaning of a statute that regulates access by long-distance service providers to the facilities of local phone companies, including their wire-lines. The statute requires the Federal Communications Commission, in adopting regulations, to consider whether the refusal to grant access to a requested element of the local network would “impair” the ability of the long-distance provider to provide services. The FCC said that were a local company to make it even slightly difficult for the long-distance provider to achieve its goal, that would constitute impairment under the statute.
Writing for the Court, Scalia said impairment had to mean a more substantial difficulty, and he engaged David Souter regarding the ordinary meaning of impair: “Justice Souter points out that one may say his ability to replace a light bulb is ‘impaired’ by the absence of a ladder . . . even though one ‘could stand instead on a chair, a milk can, or eight volumes of Gibbon.’ True enough (and nicely put), but the proper analogy here, it seems to us, is not the absence of a ladder, but the presence of a ladder tall enough to enable one to do the job, but not without stretching one’s arm to its full extension. [The absence of a ladder one-half inch taller would not] ‘impair’ one’s ability to do the job.”
Another example of such careful parsing may be found in a case from the last term, Rapanos v. United States, which concerned federal regulation of wetlands under the Clean Water Act. Both Scalia for a plurality and Stevens in dissent glossed the words of the statute with great care, Scalia noting the difference between “navigable waters” and “the waters,” and both of them quoting dictionaries.
Scalia’s opinions in constitutional cases are, of course, the ones that have drawn the most attention, and not surprisingly, for the stakes are higher. Those wanting to read his opinions can visit a law library or take a look at two recent books collecting those opinions, Kevin Ring’s Scalia Dissents and Paul Weizer’s The Opinions of Justice Antonin Scalia. Suffice it to say, Scalia’s constitutional opinions are full of text and tradition. There are original-meaning inquiries. There are explications of the Structural Constitution, most of them concerning the three powers of the federal government. And there are full-throated rebukes of substantive due process and other Living Constitution doctrines; of mushy fact-based balancing that leaves no rule of law to apply in the next case; of judicial pretension and supremacy.
Scalia has drawn criticism for his work in this area, much more than for his statutory interpretation. He has been charged with violating his own interpretive principles, and there are some instances of that–Scalia takes “a decidedly nontextualist approach to the Eleventh Amendment and the principle of state sovereignty,” writes Rossum. Another criticism is that Scalia is not originalist enough, and that if he were, he might find principles in the Constitution different from some of the ones he sees now. Yet another is that his jurisprudence is really an effort to preserve traditional moral values against legal and cultural change, and that he picks the methodology necessary to reach desired ends–that he is, in other words, a conservative judicial activist.
What is striking about such criticism is how rarely it denies the importance of the text. Scalia’s critics often accept his own strictures about the relevance of original meaning and the need for judicial restraint. Few of them argue for noninterpretive approaches of the sort popular in the academy during the years of the Burger Court, the kind that “read” the Constitution in light of various moral philosophies and theories of justice. Jeffrey Rosen’s observation in 1997 that Scalia has “changed the terms in which constitutional issues are discussed” remains true today. If there are weaknesses in Scalia’s judging, the way is open for doing better interpretive work, not for abandoning interpretive methodologies.
The fact remains that Scalia’s constitutional jurisprudence has, as Rossum puts it, “generally failed to win converts” on key issues before the Court. Scalia has shaped doctrine concerning the free exercise of religion and property rights under the Takings Clause. But his positions have not prevailed with regard to Roe v. Wade or Miranda, both of which Scalia argued in dissenting opinions should be overruled. Nor has his approach prevailed in cases involving homosexual rights, the establishment of religion, and the death penalty. And it bears recalling that what is arguably Scalia’s greatest opinion, his treatise on executive power and the separation of powers in Morrison v . Olson, was a univocal dissent, with all the other justices participating in the case arrayed against him.
Rossum makes the compelling point that it has not been possible for Scalia to build “a strong, lasting, and principled coalition” with justices like Sandra Day O’Connor and Anthony Kennedy, Reagan appointees both but not, as their decisions prove, constitutionalists. After all, these are justices who in Planned Parenthood v. Casey wrote an opinion (with David Souter, a Bush appointee) refusing to overrule Roe and affirming its “essential holding,” saying, with gassy vagueness, that the due process clause prohibits states from interfering with the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
During the years Scalia has served on the Court, the expansionist tendencies of modern judicial power may have become less intellectually respectable, but they have not been reined in. Indeed, judicial power has taken on guises seldom before seen. Writing in the April issue of the Stanford Law Review, Judge J. Harvie Wilkinson III, whom Reagan appointed in 1984 to the Fourth Circuit, argues persuasively that in its last five years the Rehnquist Court raised to “an art form” in constitutional cases a “split-the-difference” jurisprudence. The Court did so in three ways. First, it split the result in a case or set of cases–as when the Court upheld one Ten Commandments display on government property and invalidated the other; and when the Court sustained the race-based admission program at the University of Michigan Law School and struck down the one for undergraduate admissions.
Second, the Court split the difference in reasoning by borrowing ideas from competing polar positions and then melding them into a middle-of-the-road method for resolving disputes–as when, in Hamdi v. Rumsfeld, the case involving government detention of a U.S. citizen as an “enemy combatant” and the nature of the process, if any, that is constitutionally required when the detainee challenges such a designation, the Court recognized compelling interests on both sides and then used a balancing test. It concluded that Hamdi’s detention was authorized by the congressional approval of military force and was constitutional so long as the defendant received notice of the factual basis for his classification and a fair opportunity to rebut the government’s case against him before a neutral decisionmaker.
And third, the Court split the difference by coming up with centrist solutions in whole areas of constitutional law. Wilkinson’s two examples here involve capital punishment, which the Court refused to strike down altogether but also declined to leave entirely to the states, and homosexual rights, which the Court sustained in striking criminal prohibitions on homosexual conduct but also declined to protect in the context of same-sex unions.
Wilkinson’s sober analysis is this: “The legal tests on which the Court relied in splitting the difference stand in stark contrast to more traditional standards of constitutional adjudication, such as textualism, originalism, and structural federalism. . . . [The] doctrinal tools are less process oriented and more fact dependent, thus allowing the Court to more easily analyze cases with an eye toward a middle ground. They are less rigid. . . . [They] relax constraints on judicial discretion and, for that reason, potentially augment the power of the judiciary at the expense of the other branches of government.” The tools Wilkinson describes are precisely the kind Scalia rejects, the discretion they invite he opposes, and the judicial supremacy they bring about he strenuously objects to.
Maybe Scalia was right when he said in his Tanner Lectures that “the American people have been converted to belief in the Living Constitution.” Still, with the change in the Court’s composition over the past year, Scalia has more colleagues receptive to his interpretive approach than he did when he went to the Court two decades ago. With another “good judge” or two, the Court could start to turn his way.
But Scalia isn’t thinking only about the next decade or so. By his own admission he also writes for the long term, hoping to influence the next generation of lawyers. And certainly he has achieved that aim: Far more law review articles have been written about Scalia and his decisions than about any of his colleagues. The Scalia effect, if it finally takes hold, will be seen in a Court that understands what Scalia himself observed soon after he joined the Court–that “the main danger in judicial interpretation of the Constitution–or, for that matter, in judicial interpretation of any law–is that judges will mistake their own predilections for the law.”
