In 1996, Antonin Scalia assessed the legacy of the great liberal Justice William Brennan: “He is probably the most influential justice of the century.” Depending on future events, the legacy of the great conservative Scalia—who died Saturday at 79—may eclipse that of Brennan.
Scalia’s death is a monumental event; a Supreme Court without him is difficult to imagine. His legacy is so large and complex that it will take weeks simply to catalogue the questions he leaves behind.
By all accounts, in private Scalia was a figure of considerable charm to liberals and conservatives alike. As a public man, he was by turns impish, saturnine, quarrelsome, and penetrating. He set the terms of debate in the law in not one but two areas: the interpretation of statutes (which is the bulk of the Court’s docket) and the application of an 18th-century Constitution for 20th- and 21st-century needs. In statutory construction, he emphasized the text and the text alone. Before his ascendancy, it had been customary to infer the “intent” of the legislature from committee reports and statements by the measure’s sponsors. Scalia would not have that—only the words of the statute were law, he insisted; a reviewing court should apply only them. Though Scalia called his approach a modest one, the austere textual creed had the effect of placing judges at the center of the complex world of federal statutes. That said, it must be added that his background in the law of administrative agencies made him a careful reader—which a textualist ought to be. In cases with no ideological valence, it was clear that his colleagues often looked to him for legal guidance.