[Ilya Somin] Predicting Justice Scalia’s future reputation

In this Oct. 2015 photo, Supreme Court Justice Antonin Scalia speaks at the University of Minnesota. (Jim Mone/AP)

In a recent post, Yale Law School Professor Jack Balkin offers some great insights on how the late Justice Antonin Scalia’s reputation might develop in the future. He argues that Supreme Court justices’ historical standing is largely determined by four factors:

(1) How useful is the Justice to later generations?

(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?

(3) Perhaps even more important, did the Justice stand for (or take) the “right” positions on the right issues as judged by later generations? Was the Justice on the “right side of history” as determined by later generations? Note in particular that a Justice’s methodological commitments and legal skill may often be less important to later generations than the Justice’s substantive commitments.

(4) Did the Justice have acolytes and supporters who will defend and promote the Justice’s reputation, and launder it for later generations? A good example is Oliver Wendell Holmes, Jr., who was lionized by a generation of progressives and, thereafter, by generations of Harvard Law professors and students. Even though Holmes made many bad decisions (including Buck v. Bell), he was especially useful to progressives and New Dealers, who laundered his reputation. His judicial sins, so to speak, were washed away.

I. A Great Justice or a Villain on “the Wrong Side of History”?

By these criteria, Balkin suggests, Scalia “has a definite shot” at being remembered as a great justice. Many of his opinions are potentially useful to future generations. He certainly was a leading figure of his era, and took positions on many important constitutional disputes. And, due to his status as a leading champion of originalism, Scalia has no shortage of “acolytes and supporters” who will try to promote his legacy.

On the other hand, Scalia’s vehement dissents in gay rights cases put him on what future generations are likely to regard as “the wrong side of history.” Barring an improbable resurgence of social conservatism, it is likely that both public and elite opinion will continue to shift in the direction of support for same-sex marriage and other gay rights causes. Over time, Scalia and other prominent opponents that shift are likely to be viewed negatively. It is possible that being on the wrong side of this issue will come to dominate Scalia’s future reputation.

This is clearly what has happened to the historical legacy of justices who were leading defenders of slavery and racial segregation. In his own time, Chief Justice Roger Taney was viewed by many as a a great jurist. Today, he is remembered mostly for his authorship of the reviled proslavery decision in the Dred Scott case. If future generations view gay rights as the defining issue of the era and remember Scalia mainly for being on the wrong side of it, he could suffer a similar fate.

But I don’t think this is the most likely scenario. Although I believe Scalia was indeed wrong in most of the major gay rights cases of his time, I doubt later generations will see this as the most important aspect of his legacy, overshadowing the rest. In part because it affected far fewer people, the struggle over gay rights is unlikely to be considered the defining constitutional issue of Scalia’s era in the way that slavery was the defining issue of the 1850s, and segregation the defining issue of the mid-twentieth century.

The gay rights cases were significant, and they will count as a strike against Scalia. But his defense of originalism, and his opinions on issues like federalism, separation of powers, criminal law, and property rights, may well be viewed as at least comparably important.

As Balkin mentions, posterity is often willing to overlook the shortcomings of justices who leave a “useful” legacy for modern legal and political movements. He mentions the case of Oliver Wendell Holmes, who enjoys a great reputation despite, – among other things – authoring the Court’s notorious decision in Buck v.