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09/18/2020

Reviews of "The Essential Scalia"
Michael Ramsey

Law & Liberty has posted two reviews of The Essential Scalia (the new collection of Scalia's writings edited by Jeffrey Sutton and Whelan).

John McGinnis: Scalia’s Wisdom and Wit.  From the introduction:

The British have a saying that a great politician makes the weather. The rest must figure out how to deal with the new patterns of social disturbance that this statesman or stateswoman creates. Antonin Scalia was the justice who created the jurisprudential weather for our time. Judges and academics still react to his ideas.

Thus, it is a fitting tribute to the justice that The Essential Scalia: On the Constitution, the Courts, and the Rule of Law has been published four years after his death. As important as Supreme Court justices are when they render decisions, their essays and opinions are rarely worth studying as an oeuvre once they have departed. But The Essential Scalia is, indeed, still essential for anyone who studies law, as his ideas still drive the debate.

The editors, Jeffrey Sutton, a judge on the Sixth Circuit, and Edward Whelan, the President of the Ethics and Public Policy Center, wisely begin the collection with the justice’s essays on his great passions: the centrality of rules to the law, originalism, and textualism. The three ideas are interrelated. For Scalia, originalism and textualism both seek the public meaning of the words of an enactment—of the Constitution and of statutes respectively. Scalia also contends that originalism is justified normatively in large part because following original meaning generates rules that discipline interpreters and prevent them from exercising their personal discretion. As the title of the first essay in the collection shows, Scalia believes that the essence of the rule of law is that it is a law of rules.  

The editors then provide excerpts from many of Scalia’s greatest opinions and essays on more specific topics, allowing us to watch how his theory of law is translated into action. In his constitutional law dissents, Scalia consistently complains that the majority has not created a rule, making the foundation of government uncertain. For instance, in his celebrated dissent in Morrison v. Olson, he observed that the majority had deprived the president of uniform control over all executive branch subordinates. Yet it had failed to specify any clear test for determining how much of executive power Congress can make independent of the president, leaving it wholly uncertain just how many government officials the legislature could turn into free-floating bureaucrats.

Mark Pulliam: A Scalia Digest.  From the introduction:

Perhaps unfairly, most jurists are quickly forgotten when they leave the bench. Some are remembered only in infamy: the “Four Horsemen” who blocked the New Deal early on; Roger Taney for the Dred Scott decision; Harry Blackmun as the unlikely author of Roe v. Wade, and so forth. Justices with a literary flair tend to linger in the public mind, explaining the enduring influence of Oliver Wendell Holmes and Robert Jackson, among a handful of others.

History’s judgments can be fickle—even random. A single footnote (in Carolene Products) ensures Harlan Fisk Stone’s fame, a single dissent (in Plessy v. Ferguson) sanctifies John M. Harlan, and Potter Stewart’s jurisprudential legacy will likely be defined by a single phrase (“I know it when I see it”) from his concurring opinion in Jacobellis v. Ohio. Some justices are associated with scandal (e.g., Abe Fortas), and others are known mainly for their extrajudicial exploits (e.g., William O. Douglas). Most—like David Souter—simply disappear from public consciousness altogether.

A small number stand out as jurisprudential giants: John Marshall, William Brennan (although Earl Warren often gets the credit), and a debatable assortment of runners-up—Story, Field, Brandeis, Hughes, Frankfurter, Harlan II, Rehnquist, Thomas (con law scholars will argue vociferously about the rankings, but the list is short in any event). One thing is sure: Antonin Scalia is one of the greatest of all time, for all the right reasons. He will never be forgotten. A new book, The Essential Scalia, edited by a pair of former Scalia clerks (Sixth Circuit Judge Jeffrey Sutton and Ed Whelan), illustrates why.

Scalia’s judicial record, spanning 30 years on the Court, was massive, consisting of 870 opinions (281 majority opinions, 315 concurrences, and 274 dissents). In addition, he wrote important scholarly publications, in particular a 1989 article in the University of Chicago Law Review entitled “A Rule of Law as a Law of Rules” (delivered as the Oliver Wendell Holmes, Jr. Lecture at Harvard Law School) and the book A Matter of Interpretation in 1997. Moreover, until his untimely death in 2016, Scalia gave many speeches, to assorted audiences on a variety of subjects. In 2011, he even testified before the Senate, where he joked that his “pilgrimage” on the Court had started, referring to his unanimous (98-0) confirmation in 1986 as the first Italian-American justice.

In The Essential Scalia, Sutton and Whelan have done a yeoman’s job of culling the highlights from Scalia’s work and organizing them into themed categories. The topics include originalism, textualism, constitutional structure, and administrative law, and cover a diverse array of Supreme Court cases. Each chapter begins with a brief preface by the editors, providing relevant context, and each entry is introduced with a brief description of its source and background. Most impressively, in the interest of including a broad sample of Scalia’s writings without producing an unworkably-voluminous compilation, the editors were able to abridge them and streamline the text by eliminating most footnotes, case citations, ellipses, and similar matter.