The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today would have been Justice Ginsburg's 88th birthday. Her passing nearly 6 months ago was immediately overtaken by President Trumps decision to fill her seat before the election. At the time, there seemed to be a muted reaction to Ginsburg's death, as all the focus was placed on Ginsburg's dying wish: that Trump not fill her seat. During her life, Justice Ginsburg was a rock star, and larger than life personality. But from my vantage point, discussions about RBG are fading. Six months later, Justice Amy Coney Barrett is the junior justice, and Court watchers seem to have moved on.
Today, the most common reference to Ginsburg seems to be a regret that she didn't step down when Democrats had 60 votes in the Senate. Indeed, that criticism arises in the context of Justice Breyer's decision to step down now–albeit with a 50-vote majority. Beyond Ginsburg's decision to not retire, what exactly is her impact on the current Court? Discussions about her jurisprudence are slim. How often can you talk about the VMI case? This term the Court will decide–and probably mess up a personal jurisdiction case. I'm sure Ginsburg would have written the majority opinion. Maybe whoever writes the majority opinion will cite an RBG decision. Beyond that? I'm not sure.
Justice Scalia died five years and one month ago. He has not been forgotten. Justice Kagan often quips that she pretends there is a "Little Nino" sitting on her shoulder. On a regular basis, Justices spar over who can claim the mantle of Scalia's jurisprudence. Look no further than Bostock. Citations to Reading Law are incessant. Still, the Justice hedge on citing legislative history. And, of course, critics are still trying to cancel Scalia for his conservative views.
Justice Gorsuch often relays a story from Justice White. Justice White would ask his clerks how many portraits of Justices they could identify. A young Gorsuch said maybe half. White relayed that soon enough, people would forget him. Indeed. Most of my law students have never heard of White. When I teach some of his First Amendment decisions, I make a point of talking about Whizzer White. But all students know Holmes. They know Brandeis. They know Marshall and Story. They know these legends not because of the substantive results reached in any particular case (who actually cares about the Bank of the United States or the Sedition Act of 1917). They know these giants because of their legal acumen. Their way of thinking will endure long after the controversies of the day. And, I submit, law students will know Scalia for generations to come.