"Nino" ushered in a new era of judicial conservatism, almost single-handedly dragging the court system to his view of originalism.
The day President Trump nominated appeals court Judge Neil Gorsuch to the United States Supreme Court, The New York Times offered that Trump "has chosen a judge who not only admires the justice he would replace but also in many ways resembles him." The paper added that Gorsuch "shares Justice Scalia’s legal philosophy, talent for vivid writing and love of the outdoors."
In related news, I share much with actor Ryan Gosling; we are both Caucasian males, both over 35 years old, and neither of us can sing.
Drawing comparisons between the old guard and tantalizing new talent is understandable; it imputes the new arrival with a set of characteristics that it would take far too long to explain individually. It's why Bruno Mars has to answer questions about being the "new Michael Jackson" (to which he rightfully shudders), and why dozens of otherwise talented NBA players have disappointed fans by failing to be the "next Michael Jordan.
That's because when making comparisons, it's important to understand time and context. Indeed, there have been plenty of conscientious folk warblers in the past few decades, but you can only do Bob Dylan once. His poetry and countercultural politics can only be understood in the context of the early Vietnam War and civil rights era. Young music fans of today can go to any number of coffee shops to see a solo artist with an acoustic guitar, but in Greenwich Village in 1961, it was a revolutionary act.
This is why comparisons to Antonin Scalia fall short. When "Nino" took the bench in 1986, he ushered in a new era of judicial conservatism, almost single-handedly dragging the court system to his view of "originalism." For conservatives, Scalia was the Ronald Reagan of the judiciary, shaking America out of its decades-long affair with New Deal-ism. And he did so with equal parts genius, bombast and panache.
In other words, you can only do Scalia once.
Naturally, all new conservatives will be declared the heir to Scalia's originalist throne. During his confirmation hearings in 2005, Samuel Alito was derisively coined "Scalito" by his opponents. And nary a profile shows up that doesn't mention Gorsuch's admiration of Scalia's originalist temperament.
But in the terms following three decades of the liberal Warren Court and only slightly less liberal Burger Court, Scalia's adherence to judicial originalism was seen as a legalistic parlor trick. "It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact," sneered Justice William Brennan in 1985, adding, "But in truth it is little more than arrogance cloaked as humility."
Even Scalia knew how controversial his philosophy was. He once said originalism was such a minority position in academia and the legal profession that he was often asked when he became an originalist "as though it is some kind of weird affliction that seizes some people." He suggested the tone of these questions was the same as if he had been asked, "When did you start eating human flesh?"
But after 30 years on the Court, Scalia's insistence that laws be interpreted as they were intended at the time of enactment became the dominant ideology among the Court's justices. This adherence to original intent is now a requirement for Republican-nominated judges, who must denounce justices who "make law" rather than interpret it.
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At a roundtable discussion honoring Scalia's life in September of 2016, even Justice Elena Kagan — a judicial progressive — conceded that Scalia should have "declared victory" for changing the Court's philosophy towards statutory interpretation. Nowadays, "Nobody on the court— left or right — could think you could write a decision that didn't really even mention the statutory text," Kagan said, noting the modern Court's diminishing reliance on legislative records and bill histories.
"Nobody on the Court would just think it was enough to say, 'Well, this kind of makes sense as we see it,'" Kagan added, saying that change was made in the prior decades "because of Justice Scalia."
Beyond changing the central temperament of the Court, Scalia did so with an erudite writing style that was rarely matched in the history of the judiciary. His critics often point to his withering dissents as examples of mean-spirited bitterness, but they were often when he was at his stylistic best. His confrontational writing style was the secret sauce that propelled him into the upper echelon of memorable justices; Scalia without his curmudgeonly demeanor is like a calorie-free donut – good in theory, but lacking what makes it best.
So while more recent conservative appointees may believe in originalism or have "lively" writing styles, nobody is Antonin Scalia. They may all be wearing the same ideological robes, but they are of a material Scalia crafted himself.
Christian Schneider is a member of USA TODAY's Board of Contributors and a columnist for the Milwaukee Journal Sentinel. Follow him on Twitter @schneider_cm
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