At Volokh Conspiracy, Josh Blackman: What Would Have Been Justice Scalia’s Legacy If He Survived Into The Trump Presidency? From the introduction:
Richard Re wrote a characteristically insightful post [ed.: noted here] evaluating Justice Scalia’s “uncertain legacy.” Richard makes a fair point that many of Justice Scalia’s most important jurisprudential contributions have fallen out of favor by conservatives. Chevron was reversed in Loper Bright. Auer was scaled back in Kisor. Employment Division v. Smith was nearly reversed in Fulton, but was saved by Justices Kavanaugh and Barrett. Mirabelli embraced the sort of substantive due process that Justice Scalia rejected, particularly in Troxel v. Granville. Moreover, while Justice Scalia championed textualism and original public meaning originalism, the modern Court has gravitated towards “history and tradition” in Bruen and Rahimi. The tariffs ruling, especially Justice Barrett’s concurrence focused on “common sense,” a concept that Justice Scalia likely would have dismissed. There are more such examples.
And from later on:
Even before his death, Justice Scalia was reportedly souring on Auer and Chevron. Justice Thomas has told the story several times where Scalia said that Auer was a terrible decision, and Thomas replied, “Nino, you wrote it.” I don’t think he would have reversed himself on Smith. Justice Barrett, who is very much keeping the Scalia legacy alive, reinforces that point. Substantive due process is trickier. While Roe was still the law of the land, Justice Scalia had every reason to be skeptical of substantive due process. Troxel was a very confusing opinion, and I’m not sure that Scalia categorically rejected Pierce and Meyer. Had Scalia lived to see the overruling of Roe, I don’t think a reconsideration of Pierce and Meyer would have been out of the question. What about “history and tradition”? Well, keep in mind that Heller spent some time discussing the meaning of the Second Amendment after ratification in 1789. I don’t think it would have been that much of a leap. Then again, I would have much rather had Justice Scalia write Bruen than Justice Thomas. What about the major questions doctrine? Well, Scalia was the first one to point out the elephant/mousehole problem. I don’t know how Scalia would have come out on the tariffs case. For sure he did not favor the non-delegation doctrine argument.
Then again, think about all of the victories that Scalia set in motion. Dobbs vindicate his Casey dissent. Kennedy v. Bremerton finally overruled the ghoulish Lemon test. Bruen finally followed through on Heller and McDonald. The Court is poised to reverse Humphrey’s Executor. All of these landmark rulings can be traced to Scalia. To this day, Justices cite legislative history with some apprehension. Reading Law is the most cited treatise around. Advocates fight over which position Justice Scalia would embrace.
Agreed. I think Scalia would be pretty happy with the state of the current Court, especially as compared to the ones he knew. Of course, he would still be writing sharp dissents at the right moments.
Posted at 6:12 AM