OT: Some Thoughts on Justice Antonin Scalia

After the death of Justice Scalia, the law school communications office asked faculty if they wanted to write anything about him, in 500 words or less. This is not on topic for law and the biosciences (well, except for a few of his opinions, like Maryland v. King or the abortion cases), but I thought I’d post it on the blog anyway.


Prophet or politician? Many memorable Supreme Court justices have played one of these two roles, either providing a voice for others to rally around or crafting positions that will get five votes. Justice Scalia played the prophet for nearly thirty years with brilliance, biting wit, and blazing prose – he may have been, with Justices Holmes and Jackson, one of the three best writers in the Court’s history. He was not, however, the politician; indeed, he may have driven away more votes than he pulled into any given opinion. There was never a Scalia court but instead a Court pushed and prodded, or rebuked and scolded, by Justice Scalia.

The power of his pen means he will be quoted, cited, read, and remembered for many years. In some areas, particularly the Sixth Amendment and possibly the Second, the new directions he gave constitutional law will survive. But in bigger ways, I think his efforts, like those of many prophets, will come to naught. His approach to constitutional interpretation is losing force at the Court, undone, in spite of his best efforts, by the desire of most justices to reach practical results in spite of mismatches between the literal meanings of ancient words and a changed world. And on some of the issues he cared most deeply about, he was on the wrong side of history’s ratchet – it is hard for me to imagine Obergefell, once announced, being overturned. His powerful words will still inspire some students, lawyers, and judges, but I suspect his influence will continue to fade.

One last, personal, note. Justice Scalia wrote many opinions on many issues. His opinions have made me cheer, boo, laugh, groan, and go “tsk tsk”. Only one of them made me genuinely angry. In December 2000 the Supreme Court, by a five to four vote, stayed the recount of Presidential votes ordered by the Florida Supreme Court. Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, dissented from the order for a stay. Justice Scalia issued a concurrence in order to respond to the dissent. In it he defended the position that counting votes, in our democracy, could cause an irreparable injury. I thought then, and think now, that his position was both wrong and unprincipled (even though I now believe that George Bush would most likely have won a Florida recount). But five justices voted for that stay; only Justice Scalia had the guts to defend it. He was a big personality with strong views, strenuously argued. He made the Supreme Court livelier, more colorful, and more interesting. And he wrote really well. For all that, I am grateful.

Hank Greely

Director, Stanford Center for Law and the Biosciences

1 Response to OT: Some Thoughts on Justice Antonin Scalia
  1. Thanks, Professor Greely, for your insightful comments. I appreciate that you provide a generous, but also balanced, assessment of a man who, while extremely talented and influential, got under the skin of many. With Scalia, I think of the analogy of an old-school, hard-core Socratic law school professor who uses tactics that sometimes are obnoxious, even unfair. The first few weeks of class, students are in terror of him. But by the end of the year, many have developed at least a grudging respect. Years later, some will look back on him as a key mentor. Others will still hold him in disfavor.

    Scalia was a visiting professor at SLS during my third year as a student. Of course, no one knew then that he would end up on the Supreme Court. Although I had an opportunity to take a course from him, I declined, as the subject matter did not particularly interest me. In retrospect, I might regret my decision!

    David C. Burgess
    Class of 1981

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