Monday February 15, 2016 – Since the death of Justice Antonin Scalia, liberals as well as conservatives have appropriately paid tribute to his legacy as one of the most influential justices of the twentieth century. Commentators have noted Justice Elena Kagan’s generous tribute when she was Dean of Harvard Law School. “His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country,” she said. “He is the justice who has had the most important impact over the years on how we think and talk about law.” Describing Scalia’s influence in1997, the liberal political philosopher Ronald Dworkin more or less conceded, “We are all originalists now.”
Perhaps the greatest sign of Scalia’s influence is that liberal justices and scholars now make arguments about constitutional text and history, insisting that the conservative justices are ignoring the text and original understanding of the Constitution that Scalia insisted should be their guide. More than any justice since the liberal lion William Brennan, Scalia changed the way Americans debate the Constitution, and for that he deserves great respect.
At the same time, some commentators have noted a gap between Scalia’s influence on constitutional debate in general, and his influence within the Supreme Court in particular. Only one other justice—Clarence Thomas—is a card-carrying originalist. Because of his reluctance to compromise and build coalitions, Scalia’s most memorable opinions are his dissents. On the current Court, the most influential justice has been Anthony Kennedy, whose embraces a libertarian, natural-law based approach to constitutional interpretation entirely at odds with Scalia’s textualism and originalism.
As President Obama prepares to appoint a successor to Scalia, one lesson is clear: The most successful justices in the twentieth century—from Scalia to Brennan to Louis Brandeis—have left their mark on the law not as legalistic craftsmen but as constitutional visionaries. In other words; it’s not enough to embrace a purely political or a bloodlessly academic vision of constitutional interpretation; to succeed on the Court, you need to believe passionately in the constitutional values you are defending.