Justice Antonin Scalia turns 75 years old today. Like all birthdays of all controversial public figures that end in 'five' or 'zero' it is being treated as an oppurtunity to make sense of his legacy. As usual, what emerges is not a scholarly synthesis, but a compelling kind of Rorschach test. What do you see when you look at this Associate Justice? The answers, needless to say, varied across the political spectrum:
- New York Times Supreme Court blogger Linda Greenhouse got the ball rolling Wednesday night with a lengthy post criticizing Scalia for a lack of collegiality, and questioning his effectiveness as an advocate conservative legal theory. Greenhouse thinks the two failings are linked--his willingness to give Sonia Sotomayor a "public thrashing" when he disagrees with her position is matched by eagerness to deem an opinion from the conservative Samuel Alito "incoherent and as displaying such sleight of hand as to be worthy of Alfred Hitchcock." In 18 years covering him for the Times, Greenhouse can't remember any of Scalia's "bomb-throwing opinions ever enticing a wavering colleague to come over to his corner." Greenhouse believes it all stems from frustration. Frustration that despite being widely acknowledged as a "smart [and] rhetorically gifted man" Scalia has "cast a long shadow but...accomplished surprisingly little" in 25 years. "Nearly every time he has come close to achieving one of his jurisprudential goals," writes Greenhouse, "his colleagues have either hung back at the last minute or...retreated at the next opportunity."
- At libertarian Reason, Damon W. Root puzzled over Greenhouse's "strange analysis" of Scalia's career. Even if one accepts the premise that Scalia "cannot contain himself because he has become so furious and resentful," Root notes that "[t]oday’s harsh dissents do sometimes become tomorrow’s majority opinions." Root sees Scalia as a figure akin to Oliver Wendell Holmes, albeit with a very different ideology. Holmes was "celebrated by Progressive Era activists for his harsh dissents in economic liberty cases like Lochner." By the 1940s "Holmes-style hostility to the judicial protection of economic rights was becoming the majority view." Scalia can hold out similar hope that history will someday come around to his worldview.
- Conservative legal blogger Scott Greenfield suggests Scalia's greatness rests in his numerous blistering dissent. Scalia understands that a dissent is "not the mere lack of a vote out of nine" but an indicator of a disagreement of sufficient magnitude that the justice of the Supreme Court of the United States cannot speak with a unanimous voice." The chances of a dissent swaying another justice "may be slim, even minuscule," but Scalia should be commended if for no other reason than his contribution to the historical record. Historians can look to the dissents and see a record of what [Scalia] really thinks," written in "clear, unequivocal and certain" language.