an unanticipated consequence of
Jack M. Balkin
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Last week at the American Political Science Association, I gave a talk on a panel on Justice Scalia's legacy. This is a summary of my remarks.
In 2002, I wrote an article about John Marshall for the (then) upcoming 2003 bicentennial of Marbury v. Madison, in which I developed a way of thinking about the legacy of various Justices. In predicting whether a Justice will be remembered as great, some of the basic questions to consider are:
(1) How useful is the Justice to later generations?
(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?
(3) Perhaps even more important, did the Justice stand for (or take) the "right" positions on the right issues as judged by later generations? Was the Justice on the "right side of history" as determined by later generations? Note in particular that a Justice's methodological commitments and legal skill may often be less important to later generations than the Justice's substantive commitments.
(4) Did the Justice have acolytes and supporters who will defend and promote the Justice's reputation, and launder it for later generations? A good example is Oliver Wendell Holmes, Jr., who was lionized by a generation of progressives and, thereafter, by generations of Harvard Law professors and students. Even though Holmes made many bad decisions (including Buck v. Bell), he was especially useful to progressives and New Dealers, who laundered his reputation. His judicial sins, so to speak, were washed away.
Viewed from this standpoint, Scalia has a definite shot at greatness. He is clearly symbolic of the Reagan regime that is nearing its end (or has just ended). Indeed, he sat on the Supreme Court during almost the entire regime. Scalia also took important positions on most of the key constitutional issues in the Reagan regime. Perhaps most important, Scalia has plenty of acolytes and cheerleaders who are eager to burnish his reputation and keep his memory alive. There is already a law school and a lecture series named after him. The conservative movement (and the Republican Party) are still very much behind him. He was also a colorful character and a memorable writer, like Justice Holmes.
One might compare Scalia to Felix Frankfurter, who, at the time of his death, had a towering reputation, and garnered many tributes. Yet, in the long run, Frankfurter's reputation has declined. Frankfurter has no law school named after him, and, unlike Holmes and Scalia, no endowed lecture at the Harvard Law School. One reason for this may be that his consistent advocacy of judicial restraint put him on the wrong side of many important questions as the New Deal/Civil Rights Regime went on. The positions that made him a darling of liberals in the 1920s and 1930s made him seem overly conservative and out of touch to liberals promoting civil rights in the 1950s and 1960s. Scalia's positions, by contrast, did not become obsolete to conservatives as the interests and focus of the conservative movement changed. On most of the issues that conservatives cared about over a thirty year period, Scalia supported and promoted their views and ambitions. In particular, although he started out as a staunch defender of judicial restraint and majoritarianism, he did not remain so. He embraced judicial restraint and judicial engagement at different times on different subject matters.
Probably the most difficult hurdle Scalia's reputation will face is whether he took too many positions that will turn out to be "wrong" from the perspective of later generations. That might be especially so if the new political regime that replaces the Reagan regime is dominated by the Democratic Party's "coalition of the ascendant." As Scalia himself once remarked, if the politics go against him, he might be remembered as "the Justice Sutherland of the late-twentieth and early-21st century."
But I emphasize that one shouldn't be too sure about this. We can't really predict what later generations will think is most important. It's possible that Scalia will be remembered not for his vociferous opposition to gay rights but for his defense of 4th amendment and 6th amendment rights, and for his defense of separation of powers in cases like Morrison v. Olson. A lot depends on what the key issues of the future look like, and what later political regimes think are important.
In addition, a lot depends on what becomes of the conservative movement and the conservative politics that Scalia symbolized. If the positions that he stood for become and remain dominant in American politics, he will be a bit like Oliver Wendell Holmes-- his judicial sins will be washed away.
Scalia, of course, was one of the Court's two originalists, along with Justice Clarence Thomas. As I've pointed out before, originalism is not going away anytime soon. As long as people advocate originalism (and textualism), they will find Scalia symbolically useful. But I don't think that Scalia will be remembered as great primarily because of his methodological commitments to originalism or textualism, although I do agree that these are currently very important to his reputation. In the long run, I expect, his substantive positions, judged from the perspective of the future, will probably prove most important.