Justice Scalia’s Legacy

Jared Mayer, JHU:

On Saturday, February 13th, Justice Antonin Scalia, senior associate Justice of the Supreme Court of the United States, passed away. It came as a shock; the Justice was spending his weekend hunting on a Texas ranch – an activity in which ailing people generally do not partake – before he died in his sleep. Of course, Justice Scalia’s death not only leaves an open seat on the Court, but more importantly, a void in the lives of his wife, Maureen, his nine children, and his many beloved, devoted friends.

What is remarkable is not only the sheer amount of condolences that were shared throughout social media, but the fact that key elements in the Justice’s character were consistently repeated: his indubitable brilliance; his sharp tongue and razor-edged pen; his zeal with which he approached his work; his ferocity on the Court; his gregariousness and charm off the Court; and his unremitting commitment to his first principles and jurisprudence.

He became something of a “pop-Supreme Court Justice” icon through his colorful and unapologetically brash writing style. Some hailed him as a conservative hero, serving as a bulwark against the ever-powerful tide of constitutional infidelity. Others viewed him as something of a nauseating, Scrooge-like figure whose sole aim was to prevent – unsuccessfully, as it were – social progress. Because of his distinctive writing style, many news outlets, including the New York Times, the Wall Street Journal, and NPR, provided selections from Justice Scalia’s vast array of opinions, ranging from his landmark majority opinion in District of Columbia v. Heller to his recent dissent in Obergefell v. Hodges.

Aside from failing to cite his “liberal” opinions regarding, for example, the Fourth and Sixth Amendments (his majority opinions in Kyllo v. United States and Crawford v. Washington are good examples, respectively), they also failed to highlight even one case of his that demonstrated his ‘textualist’ style of statutory interpretation, which placed the text of the statute as the supreme source of textual meaning. His opinions were remarkably attentive to textual detail and linguistic precision. And upon reading just one of them, one will realize that they were beautifully written, much like his constitutional opinions.

To be sure, there are understandable reasons for omitting such opinions from their respective lists. Cases revolving around statutory interpretation often demand a greater degree of legal acumen than what one can expect from the average layman. What’s more, because statutory interpretation cases do just that – interpret statutes – they can often be easily reversed, either by the Court or, more frequently, Congress when it decides to revise a statute after an undesired interpretation by the Court. Yet those opinions uniquely gave us, the reading public, a window into the mind of Justice Scalia, not qua conservative curmudgeon, but qua brilliant, diligent lawyer.

Take the case of Shapiro v. McManus. The case centered on how to interpret two portions of the same law, 28 U.S. §2284(a) and 28 U.S. §2284(b)(1). In the former portion, the law required that a “district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts,” while in the latter portion, the law stated that the judge who is presented with the filed action “shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges” to serve on a three-judge panel to hear the case. The question, then, was how to read the statute: was it at the judge’s discretion to summon a three-judge panel or was it a mandatory procedure?

Justice Scalia, writing a brief majority opinion for a unanimous Court, affirmed the latter interpretation. In deciphering the text, Justice Scalia argued that the “text’s initial prescription could not be clearer: ‘a district court of three judges shall be convened . . . when an action is filed challenging the constitutionality of the apportionment of congressional districts . . . ’ Since the case clearly discussed a constitutional challenge to the apportionment of the relevant districts, it followed “that the district judge was required to refer the case to a three-judge court, for §2284(a) admits of no exception, and ‘the mandatory ‘shall’. . . normally creates an obligation impervious to judicial discretion.’” All §2284(b)(1) would do, then, is allow the district judge to determine whether the action itself fell under the purview of §2284(a), not merely dismiss a clear §2284(a) action with his or her discretion.

The opinion continues for another four pages to discuss another legal technicality, but the point remains: the heart of Justice Scalia’s work was found in these types of cases, which in their essence interpreted statutory language in light of maxims of textual interpretation and Court precedent. Of course, these opinions are not as flashy, or fun, or noteworthy as Justice Scalia’s constitutional opinions, complete with “jiggery pokery” and “sheer applesauce.” But they demonstrate, with simple and beautiful purity, what Justice Scalia would proudly and emphatically call “lawyers’ work” – and damn good lawyers work at that.

Justice Scalia’s passing might evoke a variety of emotions from different people across the political spectrum. Some will mourn the loss of a hero who, whether he admitted it or not, served as the conservative bulwark against an ever-encroaching progressive constitutionalism. Some, by contrast, will deride him, pejoratively citing his role as the conservative bulwark, and will welcome the opportunity to fill his seat with a justice more suitable to their liking. But nearly all will realize, or should realize, that the United States has lost a legal giant, one whose commitment to the rule of law and the supremacy of his beloved “lawyers’ work” over constitutional politics remained unwavering for his nearly 30-year tenure on the Supreme Court. For those commitments, every American should be truly grateful.


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