At Balkinization, Jack Balkin: Justice Scalia's Legacy, From the introduction:
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?
(4) Did the Justice have acolytes and supporters who will defend and promote the Justice's reputation, and launder it for later generations?
Discussing Justice Scalia's legacy generally:
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.
Potential issues for Justice Scalia's reputation:
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.
Finally, Justice Scalia's relationship with originalism:
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.
At Volokh Conspiracy, Ilya Somin has extensive comments: Predicting Justice Scalia’s future reputation. One of the central arguments:
Scalia’s historical reputation might turn out to be similar to Black’s or Holmes': remembered mainly for his achievements, while his shortcomings are minimized. But I think it is likely that Scalia’s reputation will be more analogous to that of Earl Warren or William Brennan’s. These justices are beloved by many liberals. But most conservatives view them negatively. Brennan is a particularly close analogue to Scalia, in some ways. Both were associate justices who were, for many years, seen as the leaders of their particular wing of the Court. Both wrote numerous important opinions that were praised by one side of the political spectrum and abhorred by the other.
Decades after Brennan left the court, there is still no consensus about his legacy. The same may well be true of Scalia. In the future, as today, he may well be remembered as a hero by conservatives (and some libertarians). But most left-liberals will continue to view him negatively. In addition to his gay rights opinions, this division will be reinforced by his forceful opinions in affirmative action and abortion cases. Unlike gay rights, affirmative action and abortion are likely to continue to divide left and right for a long time to come.
Scalia was a far more substantial intellectual figure than Warren or Brennan. That has won him praise even from some liberal legal scholars who think he was wrong about most substantive issues, including Cass Sunstein and Jamal Greene. But, at the end of the day, Balkin is right to argue that substance plays a much larger role than technical skill in determining justices’ historical reputations. So it is likely to be with Scalia.
And, as in the case of Brennan (who otherwise had little in common with Scalia), his substantive legacy is likely to remain controversial for a long time to come. If there is a difference, it is that some of Scalia’s critics on the left may be more likely to view him as an intellectually serious opponent than is the case with most of Brennan’s critics on the right. Scalia may enjoy greater respect from his adversaries, for that reason. On the other hand, Scalia’s sometimes-harsh rhetoric often attracts more hostility than Brennan’s more soft-spoken opinions.
Posted at 6:05 AM