The Essential Scalia

The Essential Scalia
AP Photo/Charles Rex Arbogast, File

Perhaps unfairly, most jurists are quickly forgotten when they leave the bench. Some are remembered only in infamy: the “Four Horsemen” who blocked the New Deal early on; Roger Taney for the Dred Scott decision; Harry Blackmun as the unlikely author of Roe v. Wade, and so forth. Justices with a literary flair tend to linger in the public mind, explaining the enduring influence of Oliver Wendell Holmes and Robert Jackson, among a handful of others.

History’s judgments can be fickle—even random. A single footnote (in Carolene Products) ensures Harlan Fisk Stone’s fame, a single dissent (in Plessy v. Ferguson) sanctifies John M. Harlan, and Potter Stewart’s jurisprudential legacy will likely be defined by a single phrase (“I know it when I see it”) from his concurring opinion in Jacobellis v. Ohio. Some justices are associated with scandal (e.g., Abe Fortas), and others are known mainly for their extrajudicial exploits (e.g., William O. Douglas). Most—like David Souter—simply disappear from public consciousness altogether.

A small number stand out as jurisprudential giants: John Marshall, William Brennan (although Earl Warren often gets the credit), and a debatable assortment of runners-up—Story, Field, Brandeis, Hughes, Frankfurter, Harlan II, Rehnquist, Thomas (con law scholars will argue vociferously about the rankings, but the list is short in any event). One thing is sure: Antonin Scalia is one of the greatest of all time, for all the right reasons. He will never be forgotten. A new book, The Essential Scalia, edited by a pair of former Scalia clerks (Sixth Circuit Judge Jeffrey Sutton and Ed Whelan), illustrates why.

Scalia’s judicial record, spanning 30 years on the Court, was massive, consisting of 870 opinions (281 majority opinions, 315 concurrences, and 274 dissents). In addition, he wrote important scholarly publications, in particular a 1989 article in the University of Chicago Law Review entitled “A Rule of Law as a Law of Rules” (delivered as the Oliver Wendell Holmes, Jr. Lecture at Harvard Law School) and the book A Matter of Interpretation in 1997. Moreover, until his untimely death in 2016, Scalia gave many speeches, to assorted audiences on a variety of subjects. In 2011, he even testified before the Senate, where he joked that his “pilgrimage” on the Court had started, referring to his unanimous (98-0) confirmation in 1986 as the first Italian-American justice.

In The Essential Scalia, Sutton and Whelan have done a yeoman’s job of culling the highlights from Scalia’s work and organizing them into themed categories. The topics include originalism, textualism, constitutional structure, and administrative law, and cover a diverse array of Supreme Court cases. Each chapter begins with a brief preface by the editors, providing relevant context, and each entry is introduced with a brief description of its source and background. Most impressively, in the interest of including a broad sample of Scalia’s writings without producing an unworkably-voluminous compilation, the editors were able to abridge them and streamline the text by eliminating most footnotes, case citations, ellipses, and similar matter.

The curated excerpts from opinions, articles, and speeches read like essays, allowing Scalia’s distinctive voice to ring clearly without distraction. They are a joy to read. In this, the third sampler drawn from Scalia’s vast corpus, Sutton and Whelan have succeeded in producing a comprehensive summary of Scalia’s inimitable writing style and forcefully-expressed judicial philosophy. The first volume in the posthumous series, Scalia Speaks, was reviewed here in 2017.  The second volume, On Faith: Lessons from an American Believer (2019) (reviewed here), like the first, was edited by Whelan and Scalia’s son, Christopher. All three volumes feature Forewords by one of Scalia’s colleagues: Ruth Bader Ginsburg in Scalia Speaks, Clarence Thomas in On Faith, and Elena Kagan in The Essential Scalia. All express heart-felt affection for “Nino,” despite his vigorous (and occasionally pungent) disagreement with them from time to time.

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