Richard Re wrote a characteristically insightful post evaluating Justice Scalia’s “uncertain legacy.” Richard makes a fair point that many of Justice Scalia’s most important jurisprudential contributions have fallen out of favor by conservatives. Chevron was reversed in Loper Bright. Auer was scaled back in Kisor. Employment Division v. Smith was nearly reversed in Fulton, but was saved by Justices Kavanaugh and Barrett. Mirabelli embraced the sort of substantive due process that Justice Scalia rejected, particularly in Troxel v. Granville. Moreover, while Justice Scalia championed textualism and original public meaning originalism, the modern Court has gravitated towards “history and tradition” in Bruen and Rahimi. The tariffs ruling, especially Justice Barrett’s concurrence focused on “common sense,” a concept that Justice Scalia likely would have dismissed. There are more such examples.
Richard posits two counterfactuals. In Earth 2.0, what would have happened to Justice Scalia’s legacy had Hillary Clinton prevailed in the 2016 election?
In another sense, however, Scalia’s legacy has suffered a misfortune. Imagine for a moment that Hillary Clinton had won the presidency in 2016 and, as a result, the Supreme Court had become decidedly liberal for the next generation. In that alternate universe, conservatives would still be able to point to Scalia as a visionary. Untested by success, Scalia’s views on textualism, originalism, agency deference, religious exemptions, executive unitarianism, and all the rest would remain pristine. Admirers might continue to extol his unrealized project. In fact, however, Scalia’s own disciples are the ones who are quietly altering, ignoring, or repudiating many of his views. And if even the persons most committed to the justice cannot quite bring themselves to adhere to his foundational ideas, then one must wonder about the ideas themselves.
In Earth 3.0, what would Justice Scalia have done in a Trump administration? In short, Richard speculates that Justice Scalia would have continued to evolve in the trajectory of current legal conservatives, thus undermining his legacy.
But both Scalia’s earlier views and his later, nascent ones tracked the interests of conservative political interests at those respective times. If Scalia had actually thrown overboard his decades of support for Chevron deference, that result would have diminished his legacy by striking at its core: a demand for intellectual integrity, independent of party politics. A better basis for praising Scalia is that he was slow to adopt the latest interpretive fashions. . . . In hindsight, then, it may be doubly fateful that Scalia passed away when he did. Not only did that timing create an opportunity for political mobilization around conservatism, leading to President Donald Trump’s first election and a supermajority conservative court, but it also prevented Scalia from pivoting any further in light of changing political trends. As a result, his jurisprudence today stands on a stronger, more coherent footing.
Counterfactuals are fun to speculate about, but there too many variables to control. In 2012, I tried writing a historical fiction about what would have happened if Chief Justice Roberts voted to strike down Obamacare. I wrote that President Obama feebly attacked the courts, but still lost in 2012 to Mitt Romney as a defeated president. I stopped writing it because I realized there was no way to isolate how a single event, even a huge one, would change the arc of history. But, it’s still fun to speculate!
If Justice Scalia had not passed away in 2016, would Trump still have won? I’m inclined to think so. Trump’s skills as a politician are situational. If he did not take advantage of the Supreme Court vacancy, he would have found some other way to secure the Republican base. I know many people despise him, but he is a political force of nature unlike any other in my lifetime. His election in 2016 was likely inevitable. Proof of this is the fact that he somehow managed to come back in 2024 despite everything that happened before. As a result, I will not dwell on what Scalia would have done in a Hillary Clinton presidency.
The far more fascinating hypothetical is what would have happened had Scalia lived into a Trump presidency. Indeed, Justice Scalia would have celebrated his ninetieth birthday this month.
Even before his death, Justice Scalia was reportedly souring on Auer and Chevron. Justice Thomas has told the story several times where Scalia said that Auer was a terrible decision, and Thomas replied, “Nino, you wrote it.” I don’t think he would have reversed himself on Smith. Justice Barrett, who is very much keeping the Scalia legacy alive, reinforces that point. Substantive due process is trickier. While Roe was still the law of the land, Justice Scalia had every reason to be skeptical of substantive due process. Troxel was a very confusing opinion, and I’m not sure that Scalia categorically rejected Pierce and Meyer. Had Scalia lived to see the overruling of Roe, I don’t think a reconsideration of Pierce and Meyer would have been out of the question. What about “history and tradition”? Well, keep in mind that Heller spent some time discussing the meaning of the Second Amendment after ratification in 1789. I don’t think it would have been that much of a leap. Then again, I would have much rather had Justice Scalia write Bruen than Justice Thomas. What about the major questions doctrine? Well, Scalia was the first one to point out the elephant/mousehole problem. I don’t know how Scalia would have come out on the tariffs case. For sure he did not favor the non-delegation doctrine argument.
Then again, think about all of the victories that Scalia set in motion. Dobbs vindicate his Casey dissent. Kennedy v. Bremerton finally overruled the ghoulish Lemon test. Bruen finally followed through on Heller and McDonald. The Court is poised to reverse Humphrey’s Executor. All of these landmark rulings can be traced to Scalia. To this day, Justices cite legislative history with some apprehension. Reading Law is the most cited treatise around. Advocates fight over which position Justice Scalia would embrace.
I think a 90 year old Scalia would have spent another decade expanding his legacy. It is a shame he could not have made it to the present. Indeed, shortly after Dobbs was decided, I asked Eugene Scalia what his father would have done had he lived to see Roe overruled. Eugene said it would have been a crowning achievement of the Justice’s legal career.
Whenever I talk to law students, I always lament that they will never see Scalia in real life, but can only read his writings. I miss Justice Scalia, and his opinions dearly.
