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Assessments of Justice Scalia, on the Eve of His 75th Birthday

By Ashby Jones

Conservatives love him (and revere him); liberals loathe him (but respect him).

But everyone seems to agree that Justice Antonin Scalia is influential. Indeed, he alone is largely responsible for the “Originalism” movement, which, some would argue, provided the court an entirely new lens through which to view the Constitution.

But wait just a minute, says Linda Greenhouse, in this eye-opening piece over at the NYT’s Opinionator blog.

Greenhouse, the long-time Supreme Court reporter for the NYT, starts the piece by asking why Scalia continues to write such scathing, vituperative dissents. She writes:

I can't think of an example of one of Justice Scalia's bomb-throwing opinions ever enticing a wavering colleague to come over to his corner. Certainly his angry prediction in a dissenting opinion three years ago that granting habeas corpus rights to the Guantánamo detainees "will almost certainly cause more Americans to be killed" did not lead Justice Anthony M. Kennedy, author of the majority opinion in that case, Boumediene v. Bush, to switch sides. Publishing such an inflammatory statement once it was clear that it would not shake the majority loose was an exercise in self-indulgence that could serve only to undermine the court's own legitimacy.

So, she continues: “[W]hat does this smart, rhetorically gifted man think his bullying accomplishes?” Her response:

It's a puzzle. But having raised the question, I will venture an answer. Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little.

. . .

With the highest achievement of his originalist jurisprudence now in peril, fear as well as anger was palpable in his dissenting opinion [in Michigan v. Bryant, issued last week.]

. . .

This Friday, March 11, is Justice Scalia's 75th birthday. It doesn't promise to be a happy one.

And thus the piece concludes.

Over at the Volokh Conspiracy, GW law professor Orin Kerr burned the midnight oil and came up with a different answer to Greenhouse’s “what to those angry dissents accomplish?” question.

Scalia has explained that his goal in writing dissents isn't to "bully" his colleagues, but rather to influence future generations of law students who then become the next generation of lawyers and judges

. . . .

[t]he main test for Scalia's dissents is not whether they worked with the current Justices, but whether they influence the law in the future. As a former professor, Scalia knows what he's doing, I think. He knows how to write a dissent in a way that is likely to be excerpted at considerable length in a casebook, and he knows how to write in a way that is very entertaining for bored law students to read. By writing a sharp, even overheated dissent, Scalia may sometimes annoy his colleagues. But he also ensures that the issue in the case will be debated in law schools in significant part on his terms, which I think is a pretty significant accomplishment.

LBers, any thoughts? On Kerr’s point, Oliver Wendell Holmes was deemed “The Great Dissenter” for his efforts in disagreement. His dissents influenced judicial thought for years to come following his death. Will Justice Scalia have the same legacy?

Full post as published by Law Blog - WSJ.com on March 10, 2011 (boomark / email).