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04/03/2018

Calvin TerBeek on Justice Scalia's Legacy
Michael Ramsey

At Balkinization, Calvin TerBeek (guest-blogging): The Multiple Uses of Justice Scalia (reviewing Scalia Speaks (Christopher Scalia & Edward Whelan, eds.); Bryan Garner's Nino and Me, and Richard Hasen's  The Justice of Contradictions: Antonin Scalia and the Politics of Disruption).  From the introduction:

Shortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”

It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.”

A key part of the argument: 

... Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.

In the two years since his death, Scalia’s legacy is being constructed anew by law professors, conservative commentators, conservative judges, former law clerks, even family members. This process of course was long in the making. As Scalia moved his evangelizing for originalism into higher-salience venues—he had long been an entrepreneur for originalism in the 1980s and 1990s in his numerous law school visits—and as constitutional conservatism maintained its majority on the bench via President Bush’s 2000 and 2004 victories (to say nothing of the continued growth of the Federalist Society and Scalia’s Heller opinion), originalism, textualism, and fidelity to the Constitution have emerged as Scalia’s current legacy.

This is not to say this is empirically incorrect. Instead, the point here is that even within his own lifetime Scalia had two different, though overlapping, “useable pasts” for the conservative movement. The goal of this short review essay, then, is to canvas three recent books that take aim at shaping Scalia’s legacy and discern how the ongoing, endogenous process of legacy-construction is starting to take shape.

And in conclusion:

In sum, Scalia’s legacy is in flux and will continue to be over the long term. As I’ve tried to sketch out here, which constitutive story that ultimately shape what we “know” about Scalia and constitutional development is up for grabs. While we can delineate which uses constitutional conservatives are likely to solidify around, legal liberals might follow Hasen rather than surrendering the field to conservatives. More historical work would be worthwhile in exploring how legal liberals might create their own “useable pasts” about Justice Scalia, especially as his papers become available. Whether Scalia is considered a great, influential, or dangerous justice in the future will be constructed over the long duree. That project should not be taken for granted.