Twenty years ago today, President Ronald Reagan executed the presidential commission appointing Antonin Scalia to the Supreme Court. Twenty years ago tomorrow, if my decoding of the information on the Federal Judicial Center’s biographical database is correct, Scalia performed the last act of the appointment process by accepting the appointment.
Scalia, by virtue of the force and clarity of his positions, has in a very real sense been the defining figure in American constitutional law over the past two decades: Virtually every theorist defines himself in relation to Scalia.That is shown, for example, by the fact that a recent review (in Ralph Rossum’s excellent book Antonin Scalia’s Jurisprudence: Text and Tradition) found that Scalia’s name appears in the titles of law-review articles 120 times—nearly as often as the combined total of his eight other longtime colleagues on the Rehnquist Court.
As I explained in this review of two selections of Scalia’s opinions, Scalia has been the leading proponent of original-meaning jurisprudence, and his writing “displays a sparkling prose and a logical rigor that make his opinions especially accessible and appealing to the intelligent layman.” With one or two exceptions, it is difficult to imagine that selected opinions of the rest of his longtime colleagues would be of interest to anyone.
It is, of course, undeniable that Scalia has often been on the losing end of major cases. But the issues, by and large, remain alive. Virtually everyone now recognizes the soundness of Scalia’s brilliant solo dissent in Morrison v. Olson, the 1988 case in which the Court ruled that the independent-counsel statute did not violate the Constitution’s separation of powers. As I have written:
Scalia's remarkable dissent, at the end of what was only his second year as a Justice, was arguably the first clear signal of what makes Scalia both great and distinctive. The originalist analysis in Scalia's dissent was made all the more compelling by his striking prose. Two passages may illustrate the point. Separation-of-powers issues, Scalia observed, often "will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf." And addressing Rehnquist's claim that the independent counsel remained subject to "some" presidential control and that "[m]ost important" among these controls was the Attorney General's "power to remove the counsel for 'good cause,'" Scalia memorably responded: "This is somewhat like referring to shackles as an effective means of locomotion . . . . [L]imiting removal power to 'good cause' is an impediment to, not an effective grant of, Presidential control."
Precisely because Scalia’s jurisprudence reflects the genius of the Framers and an abiding faith in, and fidelity to, American constitutional principles, there is ample reason to hope that his wisdom on this and other issues will some day prevail.
Happy Anniversary, Justice!
From Steve Schmidt, who, as special adviser to President Bush, led the White House's efforts to confirm the Supreme Court nominations of John Roberts and Samuel Alito: "Ed Whelan was the most influential and valuable commentator on the nominations of Chief Justice Roberts and Justice Alito. His remarkably rapid, thorough, and reliable responses to the distorted attacks on the nominees prevented those attacks from gaining traction. The White House was deeply grateful that he was on our side."