The passing of a Judicial Titan

|The Volokh Conspiracy |

This morning, USA Today published my lengthy tribute to Justice Antonin Scalia, Scalia restored right to bear arms. Here are a few excerpts:

I feel a powerful sorrow at the death of Antonin Scalia. Because he was still at the height of his powers, and showed no sign of illness or old age, his passing feels more like an assassination than a natural part of the process that claims us all. Just last fall, he visiting Georgetown Law, as he has so many law schools, to speak to and take questions from our first year students. It seems like yesterday he visited my seminar to discuss the book he co-authored, Reading Law: The Interpretation of Legal Texts. [snip]

If they make any lasting contributions at all, Supreme Court justices typically make them from the bench in their opinions—perhaps most importantly in their dissents in which they can speak with their own voice and not for a committee of their fellow justices. But Scalia made a much larger contribution to the approach to constitutional interpretation that is today called "originalism." No single person did more to make "originalism" the constitutional theory to beat than Antonin Scalia.

The term "originalism" was actually coined in 1980 in a law review article by then-Stanford Law professor Paul Brest in which he criticized scholars and others who claimed that the text of the Constitution should be interpreted according to the original intentions of its drafters, who are referred to as "the framers." Then, in 1985, in a highly publicized and controversial speech to the American Bar Association,Ronald Reagan's Attorney General, Edwin Meese powerfully defended what he called, "a Jurisprudence of Original Intention."

As Meese recalls, behind the scenes, Scalia—then a judge on the D.C. Circuit Court of Appeals—objected that this version of originalism was wrong. Rather than search for the original intention of the framers of the Constitution, Scalia maintained that we should instead be identifying the "original public meaning" of the text as it would have been understood at the time of its adoption. More than any other, this single refinement obviated many of the objections that had been made to originalism in the 1980s by living constitutionalists like Brest and others. In the 1990s it led to what is now sometimes called "the New Originalism."

Having shaped the theory itself, Scalia then employed it in one of the most important cases of our lifetime: the 2008 case of District of Columbia v. Heller, which restored a previously lost clause of the Constitution: the Second Amendment. [I then say much more here about the case and decision.]

Perhaps as significant as the decision itself, by the time Heller was decided, all nine of the justices felt the need to approach the meaning of "the right to keep and bear arms" from an originalist perspective. In his dissenting opinion, Justice John Paul Stevens, joined by the other three "progressives," abandoned the "collective right of states" reading in favor of a newly-minted theory that, with the Second Amendment, the framers intended to protect the individual right of a citizen to bear arms in an organized militia.

Like all opinions, Justice Scalia's in Heller was not perfect—in particular in its handling of what was a "reasonable regulation" of the right. But it nevertheless was the culmination of his ambition to place the original meaning of the text at the center of constitutional law. He had prevailed in a way that few justices ever do.

Of course, Antonin Scalia did so much more than these two things and there is good reason why he is likely the most discussed justice in every constitutional law course taught in the U.S. His dissents are crystal clear, accessible, engaging, sometimes caustic and always provocative. He freely admitted he wrote them for law students to read, not for his fellow justices. And, as I teach my students, even his 2005concurring opinion in the Raich case is much better reasoned than the majority opinion of Justice Stevens that Scalia refused to join.

But if these two things were all he had done—improved the theory of originalism and shepherded its eventual adoption by the Supreme Court to restore an entire amendment in the Bill of Rights—Antonin Scalia would still be among the most impactful justices in our history. His shoes will be very difficult for anyone to fill, but he has set a powerful example for future generations of judges to follow.