Immediately following his death, Justice Antonin Scalia was widely praised, mainly but not exclusively by far-right political conservatives, as one of the most influential jurists of his generation, if not in America history. Indeed, the adulation was so frothy one might have concluded that Scalia was already enshrined in the pantheon of great American jurists along with Chief Justice John Marshall, Justice Louis Brandeis, and Circuit Court Judge Learned Hand, to name but a few.
It is true that over the three decades Scalia was on the Supreme Court, he made distinctive contributions to a vigorous debate over the meaning of the Constitution and how a judge should divine that meaning. He also played a central role in fueling deliberations over how to interpret statutes. But as strong a voice as he was in those debates, Scalia was not always the most consistent or persuasive one. Thus, the fact that he became an important figure not just in the minds of judges, lawyers, and inside-the-Beltway commentators, but individuals of many different stripes around the country, must mean that something much more potent than his participation in these debates contributed to his enormous public standing.
Justice Scalia had power, and for three decades he utilized that power to promote a radically conservative agenda. On so many of the highly controversial issues the court has decided in recent decades, the nine justices split 5 to 4, making Scalia essential to a conservative majority.
He was also a distinguished writer—and he wrote not just for the bench or the bar, but for the broader public. Accordingly, many of his opinions bristle with words and phrases likely inserted to appeal to far-right fellow travelers.
Justice Scalia refused to have his voice muffled by the Supreme Court’s protective walls. He broke through the stifling gates of judicial convention to become a prominent public figure with a national following. Indeed, Scalia became a firebrand celebrity who delighted in preaching his radically conservative values, and who could be counted on to increase attendance at politically conservative retreats and conferences such as the Federalist Society.
Scalia became prominent and celebrated precisely because he used his position as a justice on the court to mobilize conservatives, to rally those sympathetic to his cause, and to point them toward the radical change he favored. And he succeeded. He became a hero to the nation’s radical-right political establishment.
But will Scalia’s influence last? That is highly unlikely. History will eclipse him, and for many reasons.
Justice Scalia’s substantive views were antithetical to what is most fundamental, important, and enduring about American legal and political aspirations. He was horrified—indeed outraged—by the court’s ruling that a woman has a constitutional right to an abortion. In a case that arose a few years after he joined the court, and in which Justice Sandra Day O’Connor wrote a concurring opinion supportive of a woman’s right to abortion, Scalia stated that he did not think O’Connor’s opinion could “be taken seriously,” and he dismissed it as “irrational.”