Eric Segall on Justice Scalia's Legacy
At Dorf on Law, Eric Segall: Justice Scalia 1 and Justice Scalia 2: A Modest Proposal. From the introduction:
Jack Balkin of Yale Law School recently posted an essay about Justice Scalia's legacy which sets forth four criteria for ascertaining what a Justice's long term reputation is likely to be. Balkin argued we should look at 1) how useful the Justice is likely to be to future generations; 2) Is the Justice central to the political regime in which he lived; 3) Did the Justice take positions that are likely to end up on the "right side of history"; and 4) Did the Justice have promoters and "acolytes" willing to strongly defend his positions.
I think these criteria are fine for the task at hand, and so does my friend Ilya Somin, who responded to Balkin with his own post on the Volokh Conspiracy.
And the key point:
One thing Scalia did do was talk the talk of originalism and textualism in his writings, his dissents, and his public speaking engagements. And, he did that very well. So, here is my proposal. From now on, I hope academics will refer to "Scalia 1" and "Scalia 2." Scalia 1 was the witty academic, fun public speaker, and caustic dissenter who made detailed and interesting arguments in favor of judges leaving elected officials alone unless they violated the clear text or original meaning of the Constitution. Scalia 2 was the judge who voted to overturn the acts of those very same officials all the time through huge swaths of constitutional law even though neither the clear text nor the original meaning supported those decisions.
Whatever Scalia's legacy ends up being, if we don't keep the two Scalias straight, we are not doing justice to the actual man.