Justice Scalia’s Memorial and the Future of the Supreme Court

My views about Justice Scalia, unlike his own views about constitutional meaning, constantly evolve.  On Friday, the Supreme Court Bar held a memorial to honor Justice Scalia’s life and legacy that inspired me anew to reflect upon the Justice, his contributions, and his shortcomings.  I highly recommend that both skeptics and disciples of Justice Scalia (and everyone in between) watch the memorial, where former clerks from law practice, legal academia, government, and the judiciary all shared their experiences with the Justice.

Below are the aspects of Justice Scalia’s influence that I hope will not be lost with his passing.   Although I would not want a Court of nine Justice Scalias, I hope that each Justice, and especially anyone who replaces Justice Scalia, will continue his legacy in the following areas.


Simplifying the law:  Kristin LInsley, now a partner at Gibson Dunn, noted that her former boss’s textualism, which forced litigants and judges to focus primarily on the text of a statute instead of its perceived purpose or legislative history, has simplified the law and thus lowered legal costs for both sides.  Justice Scalia’s philosophy of interpreting a statute as written, instead of examining the purpose of the statute, meant that pouring over hundreds of pages of committee reports was no longer as critical when advancing legal arguments.

Justice Scalia helped transform areas like bankruptcy, which was so complex and unpredictable due to judges frequently using their equatable powers instead of focusing on a statute’s clear meaning.   Now, bankruptcy practice is less specialized and more even-handed and predicatable.  Although laws and even legal interpretation must often be complex, because many competitng values must be reconciled, the simpler the law is, the more transparent and easier to administer.  This makes the law fairer, clearer, and, importantly for low income litigants, cheaper.

Valuing ideas over political expediency: Much of Justice Scalia’s commitment to textualism was based on his respect for the democratic process.  He wanted to interpret the law to accord with a statute as democratically enacted, not as some committee member or Justice thought the law should be.  According to George Washington Law professor Bradford Clark, this meant that Justice Scalia (althogh I do not believe he was perfect in this regard) valued principled decision making and analytic rigor.  He loved to argue and debate and was open to correction, even by his clerks.

This approach is especially important when interpreting the Constitution, because the nine Justices have the immense power to invalidate democratically enacted laws if they are in violation of the Constitution.  As United States Court of Appeals Judge Jeffrey Sutton noted, rule of law quickly becomes rule of man if judges cannot separate their subjective senses of what is right from their legal methodologies.  Judge Sutton verified that Justice Scalia truly respected the line between law and personal opinion. He thought the proper currency of the law should be ideas and  reasoned arguments, and Justice Scalia wanted to ensure that the law was coherent.  The job of the Court, after all, is to offer administrable guidance to lower courts.

Paul Clement, former Solicitor General and current partner at Kirkland and Ellis, shared important examples of Justice Scalia’s elevating ideas over political preference, including voting in favor of the First Amendment right to burn the flag and granting rights to criminal defendants, despite his personal law and order philosophy, based on his textual readings of the Fifth and Sixth Amendments.

Articulating his own methodology for others to scrutinize:  Justice Scalia was a self-proclaimed originalist; he believed the Constitution should be interpreted according to the public meaning of its text at the time that text was written.  Although I am not an originalist, because I think factors like precedent and new understandings of abstract concepts like “cruel and unusual” are relevant to judicial interpretation (and Justice Scalia’s opinions often belie this philosophy),  I do believe the text and original meaning of a statute should be paramount.  Originalism requires a judge to restrain his or her role to the questions, as noted by Judge Sutton, (1) did the people empower us to resolve this dispute, and (2) on what grounds.  I hope that the Justices always keep these questions at the forefront of their minds.

Fundamentally, Justice Scalia gave us a well articulated theory for a results-neutral judicial philosophy.  Although it is difficult to implement this philosophy, and although I believe Justice Scalia often fell short of his aspirations, he presented a vision for the proper respect for the rule of law in a constitutional democracy.  Even judges who do not share this vision would perform a valuable service for society by articulating their own methodologies for public scrutiny, more than producing sound bites of why any particular case should come out the way it did.

Cherishing friends with whom he disagreed:  In an election cycle that has become so ugly and polarized, and has caused so many to lose both dignity and friends, Justice Scalia’s example here is one of the most profoundly important.  Once you recognize that the law is playing with ideas, you can befriend those who also valiantly and intelligently strive to search for the best ideas even if you disagree with their ultimate conclusions.

Of course, because I do not share Justice Scalia’s Catholicism, I am sanitizing somewhat Justice Scalia’s remarkable ability to cherish even those who fought against everything he wanted to accomplish.  Justice Scalia may have been motivated by the view that we should “hate the sin but love the sinner.”

I do not believe Justice Scalia’s faith is an appropriate consideration in his judicial decision making, but encouragingly, his former clerk Kristin Linsley said that he never brought religion into his discussions of cases.  Justice Scalia claimed that if there were ever a conflict between his job and his religion, he would retire.  Based on what I perceive to be Justice Scalia’s sincere respect for rule of law and the proper role of the judiciary, I have some amount of faith that this is true.  If faith motivated Justice Scalia to serve his country to the best of his abilities, I cannot take issue with that.

Ultimately, our whole system of government and constitutional interpretation is a matter of faith.  If the Justices continue to allow themselves to be influenced by Justice Scalia’s better self, I will continue to have faith in the Supreme Court as one of the most exalted, exemplary, powerful institutions this country has.