At Liberty Law Blog, John McGinnis: Scalia Failed to Create a Rule of Law for Precedent. From the introduction:
. . . Despite his mistakes, Justice Scalia was a great justice. But precisely because of his greatness, his errors, unless noted and analyzed, may hold back progress in the jurisprudential theories he championed.
In the constitutional law, I think Justice Scalia’s greatest systematic mistake was his treatment of precedent. One of his most famous statements on the original meaning of the Constitution was one in which he argued for following precedent: “I am an originalist, not a nut.” Unfortunately, his argument for precedent here does not seemed to be based on the Constitution itself, or tied to any rule. It is merely a maxim of prudence. Overruling some cases could be too disruptive to entertain.
And to my knowledge, he never provided any further analysis of how to tell us when cases were too disruptive to be overruled and when they were not, let alone whether this was a sensible rule for evaluating precedent, even if it should be thought of as a rule. As a result, he is open to the criticism that he picked and chose among precedents he liked (or at least could live with) and those he hated. …
I agree that (a) Justice Scalia had no comprehensive theory of precedent, coming dangerously close to respecting precedents he liked and rejecting those he didn't, and (b) this is a serious problem for his jurisprudence as a whole. I also think that many criticisms that purport to attack Scalia's use of originalism are actually attacks on his use of precedent. For example, one common attack is that he embraced constitutional limits on regulatory takings without adequate originalist justifications. But as Michael Lewyn shows here, Scalia's regulatory takings jurisprudence was based on precedent, not originalism. That isn't a full defense, though, because Scalia did not explain why he chose to extend the regulatory takings precedents rather than abandon them.
Posted at 6:25 AM