Scalia's legacy: A court transformed

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The late Justice Antonin Scalia will be remembered for his colorful comments from the bench, but court watchers say his true and lasting legacy will be the way he transformed the Supreme Court.

Scalia, 79, died while on a hunting trip in Texas and will be buried on Saturday after a funeral in Washington. His sudden passing has set off a flurry of remembrances, with friends and foes alike hailing his intellect and rigorous approach.

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“Justice Scalia changed the terms of the debate, if you will,” said M. Miller Baker, a partner at international law firm McDermott Will & Emery in Washington.

“He made the Supreme Court a more rigorous place — more precisely, he required the court and litigants to focus on the actual meaning of the Constitution and the meaning of the statutes before the court.”

Baker, who worked on Scalia’s confirmation to the Supreme Court as a young lawyer in the Department of Justice during the Reagan administration, said the court as a whole is now more attuned to Scalia’s methodology.

“There is at least an attempt to tie a decision to the actual text of a statute or the Constitution,” he said. “Before Scalia, the court was more prone to free-wheeling decision-making, and Scalia’s sheer presence alone resulted in the court being more disciplined as an institution in the way it decided cases and approached oral arguments.”

Even members of the court’s more liberal wing such as Justice Elena Kagan said Scalia changed the way she looked at the law.

“Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation,” she said in a statement the day after he died, adding that she “admired his brilliance and erudition, his dedication and energy and his peerless writing.”

The court’s leading conservative and most senior member, Scalia was known for his originalist view of the Constitution, which rejected the idea that the meaning of the document changes over time.

Those who worked closely with Scalia said his originalist stance came across mostly strongly in cases challenging the separation of powers, gay marriage and the right to bear arms. 

Randy Barnett, a law professor and director of the Georgetown Center for the Constitution, said Scalia restored the second amendment to the Bill of Rights in the District of Columbia v. Heller, a case which struck down D.C.’s ban on registering handguns and its requirement that guns in the home be left disassembled or nonfunctional with a trigger lock mechanism.

In delivering the court’s 5-4 opinion, Scalia wrote that some undoubtedly "think that the Second Amend­ment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem.” 

“That is perhaps debatable, but what is not debatable is that it is not the role of this court to pronounce the Second Amendment extinct,” he said.

Though known at times for making polarizing comments from the bench, those who knew Scalia best described the Catholic Italian as someone with a big personality who could disagree without being disagreeable.

“He was someone who loved the back and forth of the law and wanted to know your arguments and respected your arguments,” said Kevin Walsh, a professor at the University of Richmond Law school, who clerked for the late justice from 2003 to 2004. 

“He demonstrated a capacity for friendship across ideological lines.”

Liberals often took aim at Scalia during his time on the court, decrying his staunch opposition to abortion rights, affirmative action and same-sex marriage.

In a column for Bloomberg View, Stephen Carter, a professor of law at Yale University, said he often and passionately disagreed with Scalia, but recalled him as a brilliant scholar and jurist nonetheless.

“I never failed to learn from his wonderfully crafted opinions,” he said. “The need to counter his arguments made mine better.” 

Carrie Severino, chief counsel and policy director of the conservative Judicial Crisis Network, said anyone who has labeled Scalia as racist or bigoted has done so out of ignorance. Though some his remarks weren’t so “artfully stated,” she said serious scholars will remember him for his brilliance. 

“His writing was so incisive, brilliant and frankly, fun to read,” she said.

Michele Jawando, vice president of legal progress at the Center For American Progress (CAP), said Scalia was one of the last members of the court who had a sense of humor.

“Ideologically there are many things CAP had concerns about, including the way he interpreted the law, but I would say it was always interesting to read his dissents,” she said. “You could respect it and there was poetry behind his words.” 

A makeshift memorial that formed outside the court of Friday, included jars of applesauce and a bouquet of broccoli — references to some of the colorful comments Scalia made from the bench and in his dissenting opinions in cases challenging the Affordable Care Act. 

He called the majority’s reasoning in King v. Burwell last year “pure applesauce” and in 2012 wondered whether the government could force people to buy broccoli like it does healthcare. 

“When you combine sheer brilliance with a larger than life personality, you get a Churchillian figure in American law and a Churchillian figure for the conservative legal movement,” Baker said, comparing the Scalia to Winston Churchill.

“Justice Scalia’s not going to be remembered for his off-the-cuff comments in arguments. What he will be remembered for is the brilliance of his opinions combined with his personality.”