Eminent Domain

I am way, way behind on my updates, but I hope to catch up. This article caught my eye recently. Justice Antonin Scalia is one of the most visible members of the Supreme Court. Here's what the article has to say...

Scalia, 70, has come to personify a national debate over the proper role of judges. In his opinions, he advocates -- often with sharp rhetoric -- limiting abortion rights and affirmative action. Outside the court, he's often at the center of dustups, whether it's tangling with scholars at a Swiss university or hunting ducks with the vice president.

I'm not sure I agree with this. It's possible that the "national debate" that the article is discussing differs from the national debate that I think we are having/should be having about judges. Perhaps the writer thinks that the debate is simpler, a conservative-liberal debate about the Constitution. I think that Justice Scalia has become the media focus on the Supreme Court, but it's not because of any grand philosophical debate. He's in the spotlight because he's quotable, provocative, and direct. In other words, he's a good news story.

This is a often made and true point...

"He's unyielding, he's rigid," said Mary Cheh, a constitutional law professor at George Washington University in Washington. "He likes to be pugnacious and provocative in setting out his views. It's hardly the formula for crafting coalitions."

Justice Scalia isn't a Court politician. He isn't the behind the scenes vote collector that someone like Justice William Brennan was. That does hurt Scalia's ability to turn his dissenting opinions into majority opinions. I think it also guaranteed that he would not be Chief Justice (though I doubt he really wanted the job anyway). However, Scalia's style is not totally negative...

Even if he hasn't won full-fledged converts, Scalia has reshaped the way attorneys and judges think about the law, court observers say. That's especially true with cases that involve interpreting federal law, where lawyers now routinely begin arguments by discussing the words and even the punctuation used by Congress.

"He's one of those very few justices who come along in a generation who really change the law," said Christopher Landau, a former Scalia clerk who now practices at Kirkland & Ellis in Washington. "He doesn't always win, but now people are arguing things on his terms."

The real legacy of Antonin Scalia may not be written by the man himself. It may be written by the next generation of judges and Justices, the people influenced by Scalia's views. Just from what I have witnessed at my school, I know that there are a ton of Scalia disciples out there. These are the people who have a dog eared copy of A Matter of Interpretation and read the Casey dissent for fun. They are out there and they will do a lot to form the future of the law.

As I said, that "may" be what happens. Scalia still has a few years left in him on the Court. He wrote the majority in this week's Hudson decision. If there was one more solid conservative vote (not Kennedy's squishy vote), Scalia could be writing for the majority much more often.