In the current online issue of the Harvard Law Review Forum, Saikrishna Prakash (Virginia): A Fool for the Original Constitution (130 Harv. L. Rev. F. 24 (2016) (responding to Jamal Green, The Age of Scalia) (noted here). Here is the introduction (footnotes omitted):
I confess that Justice Antonin Scalia was one of my heroes. He did not seem a demigod; he was no Washington, Lincoln, or Gandhi. Justice Scalia could be too pugnacious. He could vent against colleagues in ways that seemed counterproductive. But his wit, intellect, brio, and prose — well, these were marvels to behold.
For a spell, Professor Jamal Greene was of a similar mind. In a New York Times op-ed written shortly after Justice Scalia’s passing, Greene said that “Antonin Scalia was my hero,” that he had “looked up to [the Justice] for years,” and that the Justice wielded “enormous influence.” The praise reflected rather well on Greene. Unlike some, he perceived the virtues in an intellectual opponent. It took pluck for a liberal to confess, in public, his admiration for Justice Scalia. I suspect that some thought the op-ed was akin to a tribute to Orval Faubus.
Something happened over the spring or summer of 2016, from the pages of the New York Times to the pages of the Harvard Law Review. Greene’s overflowing praise has dried up. Filling the void is a denial of Justice Scalia’s influence and the claim that “[w]hether or not Justice Scalia was a bigot, his client — the law of chronic resistance to novelty — most certainly was.” Greene sheepishly implies he gave in to some temptation when he wrote for the Times. I do not know what intervention or epiphany triggered this seismic shift, but the reversal, executed over a few months, is extraordinary.
My remarks largely track Greene’s. I discuss Justice Scalia’s guiding lights, elements underscored in his many writings and speeches. I briefly comment on what I consider minor blemishes in his jurisprudence. I discuss his outsized influence and why it likely will endure. Finally I make a few observations about Greene’s claims that originalism is “regressive” and that Justice Scalia’s critics had reason to carp that the Justice’s jurisprudence and remarks were bigoted. To get down to brass tacks, Greene’s latest pronouncements are off target. In contrast, his observations in the Times were spot on. Sometimes we are right the first time.
Posted at 6:15 AM