Antonin Scalia as Felix Frankfurter

Mark Tushnet

I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.)

Push the suggestion of similarity a bit, and what might we see? Frankfurter reputation has declined substantially -- even from the time when I was a law student -- to the point where he's regarded, I think, as at most a moderately interesting failure. I think that -- at this point -- there's some reason to think that Scalia might be the same. (I've inserted the qualification because "failure to this point" might turn out to be "success in the end" depending on who is appointed to the Court before Scalia throws in the towel.)

Consider some of Scalia's "signature" issues. (1) The fundamental illegitimacy of Roe v. Wade as a matter of constitutional law. For a while it looked as if Scalia might prevail on this, but when push came to shove, first Justice O'Connor in Webster and then Justice Kennedy in Casey jumped ship (to mix metaphors). (2) More broadly, a deep skepticism about the doctrine of substantive due process. Again, it looked as if Scalia had prevailed when a majority of the Court appeared to sign on to his approach in Washington v. Glucksberg, the right-to-assisted-suicide case. But, just a year later in rather obscure case, a majority described substantive due process doctrine in terms Scalia derided (County of Sacramento v. Lewis). Then, of course, the doctrine came back in full force in Lawrence v. Texas. (3) Affirmative action. The same pattern here -- early indications of possible success, then ultimate defeat in the Michigan affirmative action cases.

Lots of people have noticed the items I've listed. There's a fourth, which I think has been overlooked. (4) A campaign against the use of legislative history in statutory interpretation. Here the pattern's a bit more interesting. Scalia's early successes were quite substantial. And then they started to erode. (My sense is that the key event was Justice Breyer's arrival, giving the supporters of the use of legislative history a powerful intellectual counter-force who could bring real-world experience -- as Chief Counsel to the Senate Judiciary Committee -- to bear on the question.) We started to see opinions in which a majority discussed legislative history in a separately labeled subsection, from which Scalia could dissent (or concur only in the judgment). At the end of last Term, for the first time (I think) since Scalia's campaign began the Court issued a decision in which the discussion of legislative history was fully integrated into the majority opinion, leading Scalia to write a fairly acerbic opinion concurring in the judgment (Intel Corp. v. Advanced Micro Devices).

We can speculate a lot about why all this happened. My own view is that the explanation is mostly that the troops actually never were there to support Scalia's campaigns in their full version, but that Scalia and other similar conservatives didn't realize it until too late. I also think that a small part of the explanation lies in Scalia's personality, his desire to write in ways that hit the headlines but that can alienate his colleagues -- a character trait that is reinforced by the support he gets in the legal academy and by conservative op ed writers.

More interesting, I think, is that Democrats who use the fear of additional appointments like Scalia to rally their troops may have made Scalia into one of his own creatures -- "a ghoul in a late-night horror move that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried. [It] is there to scare us [when] we wish it to do so, but we can command it to return to the tomb at will." (From his concurring opinion in Lamb's Chapel v. Center Moriches Union Free School Dist.)

Now for the advertisement: This argument is a subsidiary one in my forthcoming book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law, to be published in January by W.W. Norton. I expect that I'll pull additional bits of the argument out for later postings.

Posted 1:48 PM by Mark Tushnet [link]