Does Antonin Scalia Still Matter?

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The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts one.

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Now that Labor Day is behind us, the political event that will determine the direction of our government for at least the next two years is only a few weeks off. I refer, of course, to the opening of the Supreme Court's term on the first Monday in October. In the near term, the deliberations of the Court will matter a good deal more than who wins the election.  

Barack Obama and Mitt Romney are tussling over which of them will get to lead the nation over the fiscal cliff. Meanwhile, in its first set of arguments, the Court will deal with affirmative action and international human rights. By next spring, the winner in November may have convinced Congress to keep the lights on in the federal government; the Court will probably have settled the status of the Voting Rights Act and same-sex marriage.

Whatever you think of its decisions, the Supreme Court is the one federal body that works.

It's interesting that neither Barack Obama nor Mitt Romney uttered the words "Supreme Court" in his acceptance speech. Romney did not repeat his promise to appoint judges like Chief Justice John Roberts; Obama did not attack Citizens UnitedThe Court, on the last day of its term, had dodged a political bullet. Its position is, for the moment, unassailable. 

Though the faces will be the same, the Court that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28. The last Term will have rearranged relationships, alliances, and lines of power. The Court is now, in fact as well as name, the Roberts Court. The Chief Justice is the premier player both sides must deal with. His ascent may coincide with a significant fall.  

October 1 may be the first day of the post-Scalia era.

I have flashback dreams of the agonizing 2011 term. The "Most Amazing Words Uttered in Court" competition was fierce last year. There was "There's a bare buttock there, and there's a bare buttock here," uttered solemnly by Seth Waxman, representing ABC in the "dirty words" case, as he pointed to nude gods and warriors on the frieze decorating the courtroom.  

There was "No, they couldn't do it," intoned with a straight face by Michael Carvin, the lawyer for the National Federation of Independent Business. Justice Stephen Breyer had asked him during the health-care argument whether Congress could require vaccinations if it knew that an epidemic would otherwise kill 50 percent of the population. Nope, said Carvin; the apocalypse would be "a local matter." 

There was "Well, don't obligate yourself to that," tossed off by Justice Antonin Scalia to Solicitor General Donald Verrilli during the health-care argument. Verrilli was noting that uninsured patients receive medical care they can't pay for because of "social norms to which we've obligated ourselves." Scalia suggested that the whole mandate mess would go away if we let the uninsured die on the hospital steps.

But for me the winning words were: "That's enough frivolity for a while," uttered by the Chief Justice to Scalia during the final day of the health-care marathon. Scalia had interrupted argument of this generation's most important case to begin riffing on an old Jack Benny radio routine. The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts's face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case. (That monologue, I think, may have been the inspiration for Clint Eastwood's speech in Tampa.)

For years it has been clear that Antonin Scalia assumes he is the smartest, funniest, most important person in any room. I don't think John Roberts agrees.

I sort Justices, present and historic, into four categories. There are solid votes, whose position is not in doubt. They tend not to influence others. Justice Clarence Thomas is a solid vote. Second, there are swing votes, like Justice Anthony Kennedy, and, on occasion, Justice Breyer. They can be coaxed across the line by concessions; or they may write separate narrow concurrences. Third, there are influences, who by force of argument gradually reshape whole areas of law. And finally, there are playmakers, who put together coalitions that determine both results and rules. Their arguments are less important than their ability to count to five. Justice William Brennan was the greatest playmaker of our time; Justice John Paul Stevens gradually learned the art as well. On today's Court, as we learned last June, Roberts is becoming one.  

Scalia has been an influence, perhaps the most significant one in the past three decades. Think what you want of his philosophy (not to hide the ball, I think Scalia's "originalism" is bad history and bad law).  But his opinions have changed the way the Court talks about law. 

Today I wonder whether Scalia is becoming a solid vote -- sort of a Clarence Thomas who talks. "Originalism" as a judicial philosophy is hitting its sell-by date. It was born in the 1980s to restrain liberal judges; now that the bench has moved to the right, restraint seems somehow less important. Roberts and Alito, at any rate, seem impatient with originalism and eager to move into new areas like libertarian economic thought. They are glad to get Scalia's vote, but less interested in his routines from old-time radio.  

At 76, Scalia may have legacy on his mind. That might explain the massive new book he has just published with Bryan Garner, Reading Law: The Interpretation of Legal Texts, which proposes nothing less than a Unified Field Theory of legal interpretation. It might explain the overblown publicity offensive of the summer (Piers Morgan, for heaven's sake? Was Rachael Ray not available?), reprising greatest hits like the ever-popular "Get over it!" It might explain his eagerness to tell the world that he holds no grudge against Roberts for saving the PPACA.   

The more interesting question is what Roberts is thinking about Scalia, and whether he still thinks we've had enough frivolity for a while.    

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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