In the Washington Free Beacon, Ed Whelan: Scalia Ascendant (reviewing “Scalia: Supreme Court Years, 1986-2001” by James Rosen). From the introduction:
Antonin Scalia’s jurisprudential legacy has flourished far beyond what anyone might have reasonably imagined at the time of his death 10 years ago. By keeping his Supreme Court seat open through the 2016 presidential election, Senate Republican leader Mitch McConnell gave lots of conservatives who were leery of Donald Trump one strong reason to vote for him. Trump won a close election that he would otherwise have lost. Trump in turn appointed three justices—all admirers of Scalia—and created a conservative majority on the Court for the first time in nearly a century.
On case after case—most notably, in its 2022 ruling overturning Roe v. Wade—the Court has turned Scalia dissents into majority rulings. More broadly, it has adopted his principle of interpreting constitutional provisions according to the meaning they bore when they were enacted, and it has even more consistently abided by his twin textualist tenet for interpreting statutes.
Amid such success, it’s easy to forget how distressing Scalia’s own years as a justice were. Among its many virtues, James Rosen’s excellent second volume of his monumental three-part biography of Scalia ought to remind the reader of how far the Court has come.
As Warren Burger wrapped up his 17-year tenure as chief justice in 1986, the Court had its oldest set of five justices ever: Burger himself was 79, and four of his colleagues—William J. Brennan Jr., Lewis F. Powell Jr., Thurgood Marshall, and Harry Blackmun—ranged in age from 80 to 77. Only Ronald Reagan’s first appointee, Sandra Day O’Connor, was younger than 60.
When Reagan elevated William H. Rehnquist to succeed Burger as chief justice, he appointed Scalia, 50 years young, to the associate justice position that Rehnquist had occupied. Scalia was aghast to discover the moribund intellectual culture of the Court. The justices were set in their ways: They asked very few questions at oral argument, they didn’t talk through issues at conference, they had little interest in the craft of opinion writing, and they largely kept to themselves. …
UPDATE: At SCOTUSblog, Richard Re has a more mixed view of Scalia’s legacy.
Posted at 6:09 AM