Yesterday was the tenth anniversary of Justice Scalia’s death. His influence, over those ten years and continuing today, is surely more than he could have imagined.
Via Keith Whittington at Volokh Conspiracy, video of the American Enterprise Institute’s two day event on Scalia’s legacy is here and here.
Also at Volokh Conspiracy, Steven Calabresi: The Scalia Revolution. From the introduction:
Justice Antonin Scalia died ten years ago today, and he left an extraordinary legacy to the American people. Justice Scalia single-handedly revived legal formalism and textualism, which had been dead in the legal world since the Legal Realist Revolution of the 1920’s.
Justice Scalia’s revival of textualism and rejection of legislative history and original intent remains dominant today on the Supreme Court and in the lower federal courts, and it is increasingly important in legal academic writing. Justice Scalia taught all of us that words matter and that it is the original public meaning of a text which is the law, and not the intentions of those who wrote it.
In championing formalism and textualism, Scalia built on Attorney General Ed Meese’s emphasis on originalist history, and Judge Robert H. Bork’s insistence on the rule of law as a constraint on judges. Each of these three great men revolutionized American constitutional law and the law of statutory interpretation in their own distinctive way.
But the job of harmonizing his own textualism with Meese’s emphasis on history and Bork’s emphasis on the rule of law for judges fell to Justice Scalia because he was the one of these three men who was on the Supreme Court from September 26, 1986, until his death on February 13, 2016. Scalia, through his sheer brilliance, the force of his personality, and the energy and passion that he poured into doing his job as a Supreme Court justice transformed American law.
U.S. Supreme Court opinions in 2026 are far more formalist, more textualist, more historical, and more conscious of the rule of law because of Justice Scalia. …
Agreed (and it would be impossible to disagree).
UPDATE: At SCOTUSblog, Brian Fitzpatrick has a similar title to mine, but more content: Justice Scalia ten years later. From the introduction:
Ten years ago today, my old boss Supreme Court Justice Antonin “Nino” Scalia passed away. At the time of his death, it was clear that he was already one of the most influential justices ever to serve on the court. Today, this statement is even more true. No matter where you look – courtrooms, law firms, even law school classrooms – Scalia and his ideas are ubiquitous.
Scalia was not just a judge but a philosopher: he sought to fundamentally change how we think about the role of a judge in a democratic nation. His view was very simple: if the law is to change, it should be changed by the people who wrote the law, not by nine unelected judges sitting on the Supreme Court. If your favorite right is not in the Constitution, amend it. If your favorite provision is not in the U.S. Code, ask Congress to add it. If you can’t convince your fellow citizens that the law should change, why should you be able to get your way through judicial fiat instead?
He called this view “textualism” for statutes and “originalism” for constitutional provisions, but the two terms are synonymous: judges should follow the original understanding of a text until the text is changed. The idea is so compelling it is hard to believe it was ever controversial. But it was – until Scalia joined the Supreme Court in 1986.
Since then, textualism and originalism have taken over the legal profession. Even before Scalia passed away, studies showed that judges and lawyers started citing his favored materials (dictionaries, canons of interpretation, the Federalist Papers) to the exclusion of others (his bête noir: legislative history). These trends have only accelerated since then and have seeped into the state court systems as well. The trends are even bipartisan: one could argue that the best textualist on the Supreme Court today is Elena Kagan. As she admitted not too long ago, thanks to Justice Scalia, “[w]e’re all textualists now.” Although she might have taken a bit of artistic license there, no one doubts his philosophies command a majority on the Supreme Court and probably on the lower courts as well.
How do we know for sure Scalia is responsible for all this? He was not the first to embrace these views, and, as I noted, there are plenty of others who have embraced them since. But, as professor Frank Cross found in a study back in 2010 of federal lower court judges: “the most striking result is the extremely high rate of citations to Justice Scalia’s opinions.” According to a recent analysis by Bloomberg Law, no justice has been invoked by name more often during Supreme Court arguments over the last 10 years – and no one else is even close. Again, the trend is bipartisan. As Adam Feldman recently found in a study of Supreme Court briefs, “Scalia is cited across party types and across administrations.”
What was Scalia’s secret weapon? Yes, he was brilliant and, yes, he was charming. But even more he was an unrivaled communicator. Many have tried to emulate him; none has succeeded. His opinions are still the punchiest, his speeches the wittiest. Even his books are good: his 1998 tome A Matter of Interpretation is the single most lucid defense of textualism and originalism that has ever been published.
Another point to add is how many Scalia dissents have been vindicated in the last ten years — not just Casey and (we’re almost there) Morrison v. Olson. Someone (possibly me) should make a list.
Posted at 6:06 AM