When he died in February, many thought his originalist constitutional approach died with him.

Photographer: Alex Wong/Getty Images

Scalia's Legacy on the Court Looks Surprisingly Secure

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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If there were to be a legal man of the year for 2016, it would have to be Antonin Scalia. The justice died in February and has cast a long shadow over the whole year. His seat remains unfilled. His jurisprudence seems likely to be the touchstone for Donald Trump’s nominee.

Indeed, if Trump gets two or more Supreme Court picks, Scalia’s judicial legacy stands a chance of being vindicated rather than forgotten -- which seemed almost unthinkable when he died. Scalia’s legacy is therefore poised to set the tone for future constitutional battles in a way not seen since the 1935 death of Oliver Wendell Holmes, another great dissenter.

When Scalia died, many commentators, myself included, noted that his originalist constitutional legacy consisted mostly of dissents. (His textualist statutory interpretation legacy was another matter. There Scalia wrote plenty of majority opinions and significantly influenced even liberal justices.)

At the time, Scalia’s passing also appeared to herald the end to originalism as a dominant constitutional doctrine. With nearly a year to go in the presidency of Barack Obama, it was assumed that Scalia would be replaced by a liberal or at least a moderate justice. The appointment would change the balance of the court to decisively liberal for the first time in more than a generation.

And if Hillary Clinton had been elected, as polls suggested she probably would be, the liberal court could have been assured for a generation to come with the replacement of as many as three more justices, all of Scalia’s approximate age.

What a difference 10 months can make. By blocking Judge Merrick Garland, the Republican Senate changed the rules of the confirmation game. The election of Trump means that Scalia will almost certainly be replaced by a justice who espouses some form of his originalism -- and probably cites him as a judicial model, in the way Trump has done and probably all the judges on Trump’s list would.

And if one or more of Justices Ruth Bader Ginsburg, Anthony Kennedy or Stephen Breyer steps down while Trump is president and Republicans control the Senate, the generational transition on the court may be toward greater conservatism, not liberalism or stasis.

The consequences for Scalia’s legacy are enormous. Great judicial dissenters don’t just write to make a historical record of their beliefs. They hope for their dissenting opinions to be redeemed by later judicial majorities, to use a term coined by the legal scholar Richard Primus in a seminal 1998 article.

One of Primus’s examples of a redeemed dissent is that of Justice John Marshall Harlan (the first of two justices of the name) in the repulsive case of Plessy v. Ferguson, which held that the equal protection clause wasn’t violated by the doctrine of "separate but equal" facilities for whites and blacks. Harlan wrote: “In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.”

The other greatest redeemed dissenter in the U.S. constitutional tradition is Holmes. He saw his “clear and present danger” test for free speech vindicated, despite articulating it partly in dissent. And his dissent in Lochner v. New York, where he objected to the majority’s use of the liberty of contract to strike down a progressive law limiting bakers’ working hours, eventually became a basic principle of liberal jurisprudence.

Several of Scalia’s dissents now stand a real chance of being redeemed. Scalia argued repeatedly over the years that there was no fundamental constitutional right to an abortion. His dissent in Planned Parenthood v. Casey, to take one example, asked rhetorically whether abortion was a “liberty protected by the Constitution of the United States” and answered bluntly that “I am sure it is not.” Scalia explained that he reached that conclusion “because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.”

In the Casey dissent, Scalia also pointed to his concurrence in Webster v. Reproductive Health Services, in which he wrote that Justice Sandra Day O’Connor’s “assertion that a ‘fundamental rule of judicial restraint’ requires us to avoid reconsidering Roe, cannot be taken seriously.”

On affirmative action, Scalia used Harlan’s color-blindness ideal to argue that racial preferences would violate the Constitution. He wrote: “To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.”

Scalia’s most impassioned dissents came in connection with gay rights. It still seems unlikely that the court’s landmark decisions on the rights to gay sex and gay marriage will be overturned, given the court’s history of rights expansion. But it isn’t entirely unthinkable on a court dominated by Trump appointees chosen in the mold of Scalia.

Liberals lionized Holmes in his old age, and after his death they redeemed his opinions within a couple of decades. Scalia’s redemption may come faster. Whether it does will depend on Trump’s appointments to the court. Regardless, the jurisprudential battles of the next decade are likely to continue to be fought on Scalia’s terms. That in itself is a surprising victory.

  1. Today Time has a “person of the year” not a “man.” That was the kind of culturally loaded linguistic shift that Scalia especially hated.

  2. That’s in a concurrence; but Scalia wrote many affirmative action dissents making the same point less colorfully.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Philip Gray at philipgray@bloomberg.net