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32 posts from February 2019

02/20/2019

Justice Thomas on New York Times v. Sullivan
Michael Ramsey

Justice Thomas has gotten some attention for his suggestion yesterday (in a concurrence in a denial of certiorari) that the Court should reconsider New York Times v. Sullivan.  (The case, McKee v. Cosby, involves one of Bill Cosby's accusers suing Cosby's lawyer for defamation.)  His main point:

I write to explain why, in an appropriate case, we should reconsider the precedents that require courts to ask [the question of "actual malice"]. New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own “‘federal rule[s]’” by balancing the “competing values at stake in defamation suits.” Gertz, supra, at 334, 348 (quoting New York Times, supra, at 279).

We should not continue to reflexively apply this policydriven approach to the Constitution. Instead, we should carefully examine the original meaning of the First and Fourteenth Amendments. If the Constitution does not require public figures to satisfy an actual-malice standard in state-law defamation suits, then neither should we.

And from later on:

The constitutional libel rules adopted by this Court in New York Times and its progeny broke sharply from the common law of libel, and there are sound reasons to question whether the First and Fourteenth Amendments displaced this body of common law. ...

The common law of libel at the time the First and Fourteenth Amendments were ratified did not require public figures to satisfy any kind of heightened liability standard as a condition of recovering damages. Typically, a defamed individual needed only to prove “a false written publication that subjected him to hatred, contempt, or ridicule.” Dun & Bradstreet, supra, at 765 (White, J., concurring in judgment); see 4 W. Blackstone, Commentaries *150 (Blackstone); H. Folkard, Starkie on Slander and Libel *156 (H. Wood ed., 4th Eng. ed. 1877) (Starkie).

...

These common-law protections for the “core private righ[t]” of a person’s “‘uninterrupted enjoyment of . . . his reputation’” formed the backdrop against which the First and Fourteenth Amendments were ratified. Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007) (quoting 1 Blackstone *129). Before our decision in New York Times, we consistently recognized that the First Amendment did not displace the common law of libel. As Justice Story explained,

“The liberty of speech, or of the press, has nothing to do with this subject. They are not endangered by the punishment of libellous publications. The liberty of
speech and the liberty of the press do not authorize malicious and injurious defamation.” Dexter v. Spear, 7 F. Cas. 624 (No. 3,867) (CC RI 1825).

A couple of competing reactions:

Will Baude at Volokh Conspiracy: Justice Thomas's Skepticism of New York Times v. Sullivan; First Amendment limitations on libel and other torts are complicated (concluding I don't think [overruling New York Times v. Sullivan] [i]s that likely to happen, but this isn't a crazy position.").

Noah Feldman (at Bloomberg), Clarence Thomas Attacks the Press, Contradicting ... Clarence Thomas; His opinion calling to roll back a key libel law isn't really about originalism. Just read his earlier rulings.   As the title indicates, this article is mostly a "gotcha" piece claiming that Thomas is inconsistent because Thomas hasn't used originalism in prior free speech cases.  Professor Feldman argues:

[Thomas' opinion] is also a powerful reminder that the Supreme Court doesn’t and shouldn’t use originalism to address the freedom of speech — a reality that Thomas has reflected in his own non-originalist free-speech opinions.

Without getting to the merits of the New York Times case, I'd say that Professor Feldman reflects the simplistic idea that originalist judges must either use originalism all of the time despite precedent or  never use originalism to question precedent.  No originalist Justices think this way, and very few originalist scholars do either.  Originalist Justices typically follow entrenched precedents unless one seems appropriate (for various reasons) for reconsideration.  (As an aside, this is also true of nonoriginalist Justices: they follow precedent except when they don't.)   

I'd be the first to say that originalist Justices need a somewhat better theory of when reconsideration is appropriate and when it isn't (actually I did say that here [part II.D] as to Justice Scalia).  But it doesn't accord with any reasonable view of originalism to call it "contradict[ory]" to generally follow precedent in an area but to call for an originalist-based reconsideration occasionally.  (And I'd also note that Justice Thomas commonly uses originalism in First Amendment opinions, including for example in Brown v. Entertainment Merchants [violent video games] and McIntyre v. Ohio Elections Commission [anonymous speech]).

02/19/2019

Curtis Bradley & Neil Siegel: Historical Gloss, Madisonian Liquidation, and the Originalism Debate
Michael Ramsey

Curtis Bradley (Duke University School of Law) and Neil Siegel (Duke University School of Law) have posted Historical Gloss, Madisonian Liquidation, and the Originalism Debate (50 pages) on SSRN.  Here is the abstract: 

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post-Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however, have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued inter-branch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, offered by Professor Caleb Nelson, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. Finally, we question whether either scholar’s account of liquidation is properly attributed to Madison.

RELATED: Professor Baude's paper on liquidation, discussed in the Bradley/Siegel article, is now published (71 Stan. L. Rev. 1 (2019)).  More from Professor Baude at Volokh Conspiracy here

02/18/2019

Robert Reinstein: The Implied Powers of the United States
Michael Ramsey

Robert Reinstein (Temple University - James E. Beasley School of Law) has posted The Implied Powers of the United States (67 pages) on SSRN.  Here is the abstract:

The conventional understanding of McCulloch v. Maryland is that an act of Congress must be within the scope of specified enumerated powers or an appropriate means to carry those specified powers into effect. But, as many scholars have observed, there is a major anomaly in this formulation. Important exercises of national power cannot readily be tied to specified enumerated powers or justified as means to effectuate those powers. Among other implied national powers, the general and exclusive national powers over foreign relations and immigration are commonly cited examples. 

Several distinguished scholars, pointing to such anomalous powers, have argued that the means-ends approach of McCulloch is incorrect and that Congress possesses a more expansive regulatory power to legislate for the national general welfare, or, as sometimes articulated, to address all national necessities or exigencies. They rely, inter alia, on the general welfare clauses of the Preamble and Article I, Section 8; conceptions of inherent national sovereignty; the actions of the Constitutional Convention concerning Resolution VI of the Virginia Plan; and the “all other powers” provision of the Necessary and Proper Clause. Although these scholars present important insights, their arguments for a national general welfare power are not supported by constitutional text, history and structure.

This article proposes an original theory of how the enumerated powers should be construed and explains the source and scope of implied national powers. The error in using the mean-ends approach as setting the outer limits of national power is that it treats each specified enumerated power as independent of and unconnected to the others. Instead, the enumerated powers are deeply inter-connected and can and should be construed in the aggregate. Virtually all of the specified enumerated powers of all three branches are contained in four clusters of powers – common defense, foreign relations, preventing or resolving disputes between the States, and a national economic union. When viewed from the perspectives of text, history and structure, the Constitution vested four great aggregate powers (or comprehensive enumerated powers) in the Government of the United States. Implied national powers are constitutional when they are necessary and proper to carry one or more of those aggregate powers into effect.

This theory is based on (a) construing the Constitution as a whole and not as the accumulation of unrelated parts; (b) the historical origin of the enumerated powers in the actual long-standing distribution of powers between the imperial British government and the colonial assemblies; (c) the correspondence of these four comprehensive powers with the four essential purposes of the Union as stated in Federalist 23; (d) Alexander Hamilton’s argument of aggregate power in his defense of the Bank of the United States; (e) the Supreme Court’s adoption of Hamilton’s argument as the basis for upholding the Bank in McCulloch; (f) other precedents; and (g) Congress’s authority to carry into execution not only the specified enumerate powers but also “all other Powers vested by this Constitution in the Government of the United States.” Finally, this theory respects the Convention’s commitment to federalism by giving the national government plenary authority over four discrete areas that are essential to union while reserving extensive autonomy in the States and the people.

This is one of the papers being presented at the University of San Diego Originalism Works-in-Progress conference next weekend.

02/17/2019

Julian Davis Mortenson: Article II Vests Executive Power, Not the Royal Prerogative (UPDATED)
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) has posted Article II Vests Executive Power, Not the Royal Prerogative (Columbia Law Review, forthcoming) (99 pages) on SSRN.  Here is the abstract: 

Article II of the United States Constitution vests “the executive power” in the President. For more than two hundred years, advocates of presidential power have claimed that this phrase was originally understood to include a bundle of national security and foreign affairs authorities. Their efforts have been highly successful: among constitutional originalists, this so-called Vesting Clause Thesis is now conventional wisdom. But it is also demonstrably wrong.

Based on an exhaustive review of the eighteenth-century bookshelf, this article shows that the ordinary meaning of “executive power” referred unambiguously to a single, discrete, and potent authority: the power to execute law. This enforcement role was constitutionally crucial. Substantively, however, it extended only to the implementation of legal norms created by some other authority. It wasn’t just that the executive power was subject to legislative influence in a crude political sense; rather, the power was conceptually an empty vessel until there were laws or instructions that needed executing.

There was indeed a term of art for the Crown’s non-statutory powers, including its various national security and foreign affairs authorities. But as a matter of well-established legal semantics, that term was “prerogative.” The other elements of prerogative—including those relating to national security and foreign affairs— were possessed in addition to “the executive power” rather than as part of it.

An important response to this article.

UPDATE:  Seth Barrett Tillman expressed a similar view in a post at the New Reform Club that I had previously missed:  The Old Whig Theory of the Executive Power.  Here is the introduction: 

The Old Whig position is that the express powers (including the veto) vested in the presidency by Article II are not part of the “Executive Power” (except in the limited sense that they are powers appended to the presidency for him to execute). Today, we think of those powers as executive merely because we are used to the President doing them.

Those express powers are merely appendages to the presidency—in much the way that the Chief Justice presides over presidential impeachments (outside the context of the Judicial Power vested in the federal courts by Article III) and in much the same way that the Vice President presides over the Senate and has a vote on equal division (although the VP is not a constituent part (or member) of Congress or the Senate (as defined by Article I).

And later:

The Old Whig theory stands in opposition to the Hamiltonian theory of a core or residium of undefined executive power which exists absent an express grant of Article I, Section 7 authority from Congress. The Old Whig position is a unitary-executive-type position, like Hamilton’s, but it permits that executive to be a weak one, albeit one which cannot be stripped of the powers expressly granted by Article II.

I think this captures very well the difference between Professor Mortenson's position in the article and my (Hamiltonian) view.

02/16/2019

David Upham on Establishment and Incorporation
Michael Ramsey

At Law & Liberty, David Upham (Univ. of Dallas, Politics): The Court Should Tear Down Everson, Not the Maryland Cross (commenting on the Maryland cross case, Maryland-National Capital Park and Planning Commission v. American Humanist Association).  From the introduction:

The challenge to the 94-year-old cross (erected in 1925) rests entirely on a 72-year-old precedent, established in Everson v. Board of Education (1947).  In Everson, the Court held that the Constitution’s Fourteenth Amendment makes both Religion Clauses fully applicable against the states, and therefore, that the federal courts have authority to forbid any state action they deem an establishment of religion.

In the Maryland cross case, the litigants and judges have seemingly all accepted this precedent as settled and fully applicable law.  Despite the conservative leanings of several Justices, the participants in the litigation have thus far shown little interest in the text or original understanding of the Amendment.  Indeed, neither the text nor the very name of the “Fourteenth Amendment” appears anywhere in the Respondents’ 100-page main brief or in the lengthy opinions authored by the Fourth Circuit. Further, with the exception of two amici, no one has addressed whether Everson might be a bad precedent, inconsistent with the original understanding of the Fourteenth Amendment.

Moreover, no one, it seems, has raised the objection that it would be unjust to retroactively apply Everson so as to destroy the work of those who, two decades earlier, could not have foreseen the incorporation of the Establishment Clause.

In this essay, I’d like to establish two facts that seem to me highly relevant to a just resolution of this case.  First, when the Maryland cross was erected, the virtually unanimous legal consensus was that the federal Constitution did not incorporate the Establishment Clause against the states, and that, consequently, the respective states retained the exclusive authority to regulate themselves in matters of religious nonestablishment.  Second, this non-incorporation consensus was plainly harmonious with the original understanding of the Fourteenth Amendment.

Consequently, the citizens who established the cross could not have reasonably foreseen Everson and thus had good reason to rely on Maryland’s permission as final.  A reasonable person would not have predicted that the federal judiciary would later order the destruction of the cross as violative of the Constitution.

Some of the evidence supporting these claims is well known by scholars.  But some of it has not been published before. ...

02/15/2019

John Dossett on Originalism and Indian Law
Michael Ramsey

Following up on this post on originalism and Indian law, here is some important recent scholarship in the field by John Dossett (Lewis & Clark): 

Indian Country and the Territory Clause: Washington's Promise at the Framing (68 Am. U. L. Rev. 205 (2018)); abstract:

This article explores the Territory Clause, Article IV, Section 3 as a source of power for federal laws in “Indian country,” as defined at 18 U.S.C §1151. In contrast to plenary power doctrine, the Territory Clause offers a textual source of authority to regulate matters unrelated to commerce, such as criminal jurisdiction in Indian country. Intended to constitutionalize the Northwest Ordinance of 1787, the Territory Clause provides a principled rather than plenary basis for Congressional initiatives in Indian policy; a constitutional source of authority tempered by the duty of “utmost good faith.” This renewed understanding of the Territory Clause makes certain the source of federal authority in Indian country, and provides a stronger interpretive lens for matters of tribal sovereignty, land rights, taxation, and criminal justice.

and:

Tribal Nations and Congress’s Power to Define Offences against the Law of Nations (Montana Law Review, forthcoming); abstract: 

This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act (ICWA). The Constitution grants to Congress the power to define and punish "offences against the law of nations," in Art. I, Sec. 8, Cl. 10. Although the Offences Clause does not specifically reference Indian Nations, there is considerable evidence that it was intended for use in regulating the relationships with tribal nations as well as foreign governments. Much like the Treaty Clause and the Territory Clause, the Framers wrote the Offences Clause broadly to include foreign powers and tribal nations within the same scope of federal authority.

The Offenses Clause provides enumerated authority for the regulation of important matters between sovereigns, such as the citizenship and custody of children. In this way, it addresses claims that ICWA exceeds Congressional authority, such as those brought by the State of Texas in current litigation. Instead, the ICWA is an exercise of the well-established authority of Congress to pass laws under its enumerated powers and involves little more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every state.

02/14/2019

Eric Segall Asks: Are Court Decisions Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law.  From the introduction:

I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.

The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.

Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.

And in response:

At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).

My tentative view is that court decisions (as to constitutions and statutes) are authoritative statements of what the law is, although they are not law in themselves.  But I'm not sure there are practical implications of taking a different view for most people.  I do think that Congress and the President are entitled to hold different views from the courts of what the law is, so long as they do not act contrary to court orders.  (So for example the President can veto an Act on the ground that it is unconstitutional even if the Supreme Court has said that a law of that type is not unconstitutional).  But I'm not clear on why the distinction matters in other contexts.

02/13/2019

Calvin TerBeek on Ed Meese on Incorporation
Michael Ramsey

An interesting find by Calvin TerBeek at House Divided:  The Untold Story of How Conservatives Embraced the Bill of Rights and Incorporation. Here is the introduction:

The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control laws. Lost in this, however, is the story of how conservatives stopped worrying about the Court applying (“incorporating”) the Bill of Rights against the states. Not only is this story underemphasized, when recounted it has been rendered inaccurately. Contrary to existing accounts by legal scholars and historians, it was neither academic lawyers nor the vanguard of libertarian legal interest attorneys who cleared the path for constitutional conservatives to embrace incorporation.

In short, here’s what happened: instead of continuing to complain that the Warren Court had erred in applying the full force of the Fourteenth Amendment and First Amendment’s religion clauses to the states—an important ideational aspect of judicial and movement conservatism in the 1950 through the 1970s—farsighted entrepreneurial political actors in the 1980s saw that arguments for “disincorporation” hindered movement conservatives’ larger constitutional politics project.

I won't spoil the story, except to say it turns on a missing line in Attorney General Meese's famous 1985 speech to the American Bar Association.

Plus this appearance by the University of San Diego:

In 2009—in the wake of Heller and presumably looking forward to McDonald (2010)—a number of legal scholars, including prominent originalists, held a conference at a hotbed of originalist legal thought: University of San Diego. The conference was meant to flesh out the interaction of the Bill of Rights and the Fourteenth Amendment—that is, incorporation. Indeed, one prominent originalist, apparently unaware that the nature of the relationship between constitutional conservatism and incorporation had long since been determined by political actors in the Reagan DOJ, wrote on the topic at length. Even today, originalists still cite to the incorrect text of Meese’s speech.

My personal memory, for what it's worth, is that when I began to get interested in originalism some years after Meese's speech the "disincorporation" project was not of interest to at least the younger generation of originalist scholars.

02/12/2019

Parchment Barriers and the Determinateness of Constitutional Text
Mike Rappaport

Recently, Jonathan Gienapp, a Stanford historian, has published what is likely to be a widely read book on constitutional interpretation. Second Creation: Fixing the Constitution’s Meaning in the Founding Era argues that there was no agreement on how to interpret the Constitution at the time of the Constitution’s enactment and that standard interpretive positions only emerged after a decade of controversy. Gienapp’s book has already been the subject of a symposium at Balkinization.

I am now reading Gienapp’s book and have found much to disagree with. I plan to write more about this after I finish it. John McGinnis and I have already written a response to claims from Jack Balkin that Gienapp’s evidence shows that our interpretive position—Original Methods Originalism—is defective.

Now, Ilan Wurman, a young law professor at Arizona State, has written a very critical review of the book, which sounds many of the right themes. One claim that Gienapp makes is that the Framers’ distrust of parchment barriers showed that they did not believe that the language of the Constitution settled its meaning. Rather, the Framers relied upon the structure of the Constitution. This is a typical example of the type of argument Gienapp makes and why I believe the book is problematic.

One problem with the argument is identified by Wurman, who writes:

True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. . . . What really matter[ed to the Framers according to Gienapp] is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

But there is another problem with Gienapp’s argument. One can believe that parchment barriers—the words of the Constitution—are not sufficient to protect against unconstitutional actions while also believing that the Constitution had a determinate meaning at the time of its enactment. In fact, this is a very common understanding and is one popular justification for judicial review—without judicial review, Congress and the states would ignore the Constitution’s meaning. Consequently, one might believe that it is important to establish a constitutional structure in order to ensure that the Constitution’s determinate meaning be followed. This is the conventional understanding of what underlay the Founders’ remarks about parchment barriers and I believe that understanding is correct.

02/11/2019

Allen Mendenhall on a New Book on Justice Scalia
Michael Ramsey

At Law & Liberty, Allen Mendenhall (Faulkner): A (Mostly) Misbegotten Attempt to Take Scalia’s Measure (reviewing The Conservative Revolution of Antonin Scalia (David A. Schultz & Howard Schweber, eds., Lexington 2018))).  From the discussion:

No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. Nor are the essays  universally admiring. On the contrary, most of them are critical. “Was Antonin Scalia a sissy when it came to administrative law?” Schultz asks—unprofessionally, in my view. Mary Welek Atwell of Radford University scrutinizes Scalia’s opinions in cases about race and gender, highlighting his apparent “comfort” with the “patriarchal, hierarchical” elements of the Roman Catholic Church, and grandly declaring that Scalia “sympathized more with those who were trying to hold on to their privilege by excluding others than with those who sought to be included.”

Is that so? And is it so that Scalia, in the words of contributor Henry L. Chambers, Jr., of the University of Richmond School of Law, “read statutory text relatively simply”? What a relatively simple claim! Scalia’s Reading Law (2012), coauthored with Bryan Garner, outlines principles or canons for interpreting statutes and legal instruments; it has become a landmark in the field, having been cited in hundreds of cases and over a thousand law review articles in the seven years since its release. While it aims to simplify hermeneutics, providing sound methodological guidance to interpreters of legal texts, it is by no measure simple.

...

Most of the critiques in this book, in contrast to those just cited, are responsibly researched and tonally reserved. No reasonable person expects scholarly assessments of a controversial jurist’s legacy to be an exercise in hagiography. On the other hand, such assessments should avoid coming off like intemperate outbursts.

The 18 contributors come from a range of disciplines. Only three are law professors; two are professors of criminal justice; two are doctoral candidates; and one clerks for a federal judge. Equally diverse are the essays’ methodological approaches. The most distinctive belongs to Timothy R. Johnson, Ryan C. Black, and Ryan J. Owens, who in a coauthored chapter attempt to examine empirically—with graphs and figures—Scalia’s influence on the behavior of his Court colleagues during oral argument. Whether they succeed is a determination better left to experts in quantitative research.

And here is the book description from Amazon:

Many hoped or feared that Antonin Scalia’s appointment to the Supreme Court in 1986 would guarantee a conservative counter-revolution that would reverse the liberal jurisprudence of the Supreme Court under Chief Justice Earl Warren and which was continued to some extent under the Burger Court though the influence of Justice William Brennan. In addition, President Reagan described Scalia’s nomination as part of a project to remake the role of the Court, promote an interpretive approach of originalism, and shift authority and discretion to the States. Yet by the time of his death in 2016 it was unclear to what extent Scalia had effected the legal, institutional, or political revolutions that had been anticipated. While the Court did move to the right doctrinally, and reversed or modified many Vinson-Warren-Burger precedents, Scalia’s influence on constitutional jurisprudence turned out to be far less than it could have been, and his ability to persuade other Justices to adopt his legal views—both substantively and methodologically—was less than many mainstream media accounts recognize. Scalia’s institutional and political legacies are similarly complex: he was neither as transformative a figure as some of his allies might have hoped nor so unimportant as some of his detractors might have wished. The fact that his death and the controversy surrounding his replacement is so intense speaks to the fragile legacy that Scalia really has had on the Supreme Court after 30 years. This book will assess Scalia’s legacy in an edited volume that assembles leading legal and political science scholars who will evaluate his impact across a range of jurisprudential, institutional, and political issues.

But, $102.40 a copy!  And I thought I got a bad deal on my book pricing.