“The fact of the matter is, you wake up in 100 years and most people are not going to know most of our names…. [T]hat is really not the case with Justice Scalia, whom I think is going to go down as one of the most important, most historic figures on the Court.”
Justice Elena Kagan — in remarks last year at Harvard Law School, where both she and Justice Antonin Scalia graduated from law school — got it right.
Supreme Court justices are selected for their great legal minds, but some are greater than others. Justice Scalia will go down as one of the greatest Supreme Court justices in history.
His influence on how judges interpret and apply laws – including the U.S. Constitution – is hard to overstate. He advocated eloquently for theories of textualism, or prioritizing a law’s ordinary meaning when interpreting it, and originalism, or interpreting the Constitution as it was understood at the time of its adoption.
If these sound like obvious theories – how else would you interpret laws? – it’s due in no small part to Scalia’s success in advancing his views, first as a scholar and then as a judge.
In the pre-Scalia era, judges generally took a much looser approach to interpretation, often deciding cases based on their own personal views about the issue in question or considering extraneous materials like “legislative history” – in essence, cooked-up press releases by congressmen offering their own takes on a law – as opposed to the actual text of the law as passed. Using his razor-sharp mind and often biting wit, Scalia threw those loosey-goosey approaches into ill repute.
Even liberals like Justice Kagan, who believe in a more flexible approach to interpreting laws and the Constitution, today must at least profess to start with the text when interpreting the laws. A judge injecting her personal views about the wisdom of a law into the interpretive process is no longer acceptable.
So we are all textualists now – and for that small bit of common ground, we have Justice Scalia to thank.
David Lat is the founder and managing editor of Above the Law, a legal news website and author of Supreme Ambitions: A Novel.
