Justice Antonin Scalia’s legacy is often discussed in terms of his views on hot-button issues, such as gun control, campaign-finance regulation, abortion, LBGT rights, and the role of race in American law. But there’s one extremely important area of Scalia’s legacy that has been largely ignored since his death: access to the courts. This is where Scalia had perhaps his greatest impact, writing or joining opinions that radically changed the law in a way that made it harder for individuals to have their day in court to vindicate their federal rights.
In Article III, the U.S. Constitution establishes an independent federal judiciary with the power to hear all cases “arising under this Constitution, the laws of the United States, and treaties made...under their authority.” As John Marshall’s Supreme Court wrote nearly two centuries ago, this language authorizes the “judicial department” to “decide all cases of every description, arising under the Constitution and laws of the United States,” giving to the federal courts “the power of construing the Constitution and laws of the Union in every case” and “preserving them from all violation from every quarter.”
In some areas of the law—such as the scope of the right to bear arms, limits on campaign finance, or the protection of property rights—Scalia took a broad view of the Constitution’s text. But on the question of who should be able to argue before the courts, he did not. Article III’s use of the word “cases,” he argued, means a plaintiff must prove that he or she suffered a concrete injury to establish standing to sue; this imposed substantial restrictions on the power of Congress to permit individuals to sue in court.