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Scalia’s impact felt far beyond his written opinions

Supreme Court Justice Antonin Scalia’s tenacious national presence galvanized a nationwide effort by conservative lawyers to change the way judges interpret the Constitution and the results they reach.
Supreme Court Justice Antonin Scalia’s tenacious national presence galvanized a nationwide effort by conservative lawyers to change the way judges interpret the Constitution and the results they reach. The Hattiesburg American

Justice Antonin Scalia and I arrived at the U.S. Supreme Court in 1986. I was one year out of law school and serving as a clerk to Justice Lewis F. Powell Jr., in his last year on the bench. Scalia was newly confirmed by the Senate, 98-0, a unanimous vote that seems remarkable now.

I knew my stint at the court would last only a year. Neither of us could know what is apparent today – that Scalia’s service would stretch for almost 30 years. I caught a whiff of change with his arrival, but its significance flew right past me.

I know now that Scalia connected early with the Federalist Society, serving as the University of Chicago Law School student group’s first faculty adviser. Aided by conservative thinkers, students formed the society to retake the legal system from liberals who, in their view, dominated it.

Shrewdly, the Federalists identified law schools as the place to nurture talent. Changing the composition of the life-tenured federal judiciary was key to their strategy.

One recent published history tells us that “every single federal judge appointed by President George H.W. Bush or George W. Bush was either a member or approved by members” of the Federalist Society.

Scalia became the most prominent and flamboyant spokesman for ways of interpreting the Constitution that once seemed “out there,” but now are the basis for often-successful challenges to actions by the president and Congress, and interpretations of rights that had seemed settled.

Scalia did not invent the term “originalism,” but he made it famous. In his view, the very few words of the Constitution had a certain, specific meaning at the time they were written, which judges can find and apply accurately and consistently to answer the complex questions that arise today.

The simplicity of his position was beguiling and vexing.

By his reading, “equal protection of law” does not protect women or gays from laws against them, and “liberty” does not include a right to choose abortion. But in his view, a right to “bear arms” described in the Second Amendment by people who knew about muskets gives modern handgun owners a right to refuse to use trigger locks for safety in their homes. He restated with such certainty, that even the most ardent disbelievers occasionally had to blink, shake their heads and remind themselves that he was wrong.

During his first days on the bench, his active questioning raised some eyebrows. Powell, a Southern gentleman, turned to Justice Thurgood Marshall to ask, “Do you think he knows the rest of us are here?” The implication was that Scalia’s behavior was, at most, impolite, but not nasty. Soon, Powell began receiving what we clerks irreverently called “Ninograms,” courteous comments about cases hand-written on Scalia’s personal stationary. Scalia smiled in the hallways, politely accepted the traditional invitation to lunch from the Powell clerks, and sang holiday carols festively and in tune at the annual Christmas party.

Many people have remarked on Scalia’s uncivil tone in his dissenting opinions. His sarcasm was indeed sharp and was directed most often at the justices in the court’s middle, who, despite his prodding, refused to screen out the context of the case before them, and rely only on “text” and “traditions,” as Scalia thought they should.

Justice Sandra Day O’Connor took heat for failing to overrule Roe v. Wade, in part because she considered the fact that the structure of American society and the roles of women in it had changed since the Constitution was written. Justice Anthony M. Kennedy watched his words describing personal liberty be ridiculed as “sweet-mystery-of-life” nonsense.

A focus on Scalia’s written opinions misses the greater significance of his time on the court. For three decades, he was the public face of a nationwide effort by conservative lawyers to change the way judges interpret the Constitution and the results they reach. He spoke at conferences, retreats, D.C. think tanks, and on podcasts, advocating for interpretations that limit the power of democratic majorities to regulate for public purposes and stem the expansion of certain types of individual rights.

His views did not always win with the court, but his tenacious national presence galvanized the movement. Since Scalia took the bench, The Federalist Society has grown from a few student groups to 40,000 members, including active chapters of lawyers in Sacramento and students at McGeorge. The lower federal courts, where most cases get resolved, are packed with judges sympathetic to conservative, and often novel, legal arguments. It is these facts on the ground, not his dissents on paper, that will impact our lives for years.

Leslie Gielow Jacobs is a constitutional law professor and director of the Capital Center for Public Law & Policy at McGeorge School of Law.

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