by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Amid widespread discussion of the late Supreme Court Justice Antonin Scalia‘s constitutional record, Joseph Bottum writes for the Washington Free Beacon about another notable element of Scalia’s legacy.
Even his letters and emails were funny: clever, witty, sharp-edged. Not as polished as the hundreds of opinions, concurrences, and dissents that he filed during his 30 years on the Supreme Court, of course. Justice Scalia knew his true legacy was in his official compositions, and he put in the work, hours of polishing, to make them exactly what he wanted. But the offhand notes he sent to friends and acquaintances—even they were well-written, well-balanced little productions. …
… One angle from which he seems to be insufficiently considered, however, is that of a writer—since Justice Scalia was the most consequential American author of the last thirty years. Who else wrote like this? The small handful of people with his level of prose—novelists, poets, a few essayists, maybe—rarely produced change in public life. The small handful with his level of power—presidents, senators, movers and shakers—never matched his writing skill. …
… John Marshall, Oliver Wendell Holmes, Benjamin Cardozo, Robert Jackson: These are names that appear on lists of Supreme Court justices who wrote well. And maybe what’s most interesting about those justices is that they tended to write in ways that could be followed and appreciated by non-lawyers. Jackson more than Cardozo, perhaps, but generally the justices we enjoy reading are the justices who intended their work to be read outside the judiciary. To weigh them as writers is to be forced to ask the question of audience—to ask the identity of the readers they hoped to reach.
In his early opinions, Scalia tended to address his fellow justices. His temperament and his legal philosophy would never allow him to be a bridge-builder, the way Sandra Day O’Connor wanted to be: writing less than ideal opinions to gain consensus. But he did want to persuade the other members of the Court to stop the slide toward loose reasoning about the Constitution. In some ways he was successful. Before Scalia joined the Court, it was common to seek in legislative history a way to interpret statutes. Scalia’s insistence on the actual text of regulations, his sneer at cherrypicking legislative speeches, changed the shape of opinion writing from the Supreme Court on down.
His constitutional originalism was generally less successful, however important his thought proved when he returned to the text of the Constitution in its historical setting to overturn years of gun control with the Heller decision. But it was precisely in those constitutional defeats that he began to shift toward a larger audience of law students trained up in the Federalist Society, intellectualized lawyers and lower-court judges, and the commenting class of American observers. After a period of gloom midway through the Clinton administration—a period in which the sarcasm of his dissents reached a dark and probably unhelpful perfection—he began to write for an expanded class of readers, trying to set in place not just legal but cultural markers.