Fitzpatrick and Varghese on Scalia in the Casebooks @VanderbiltU

Brian T. Fitzpatrick, Vanderbilt Law School, and Paulson Varghese, Vanderbilt Law School (Students), are publishing Scalia in the Casebooks in volume 84 of the University of Chicago law Review. Here is the abstract.

In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases. We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks. We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.

Download the article from SSRN at the link.

Jones @bchristophjones and Sarat @ljstprof on Justices as "Sacred Symbols": Antonin Scalia and the Cultural Life of the Law

Brian Christopher Jones, Liverpool Hope University, and Austin Sarat, Amherst College, are publishing Justices As 'Sacred Symbols': Antonin Scalia and the Cultural Life of the Law in the British Journal of American Legal Studies (2017). Here is the abstract.

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to the popular will. But even though Scalia fought against the romantic vision of philosopher judge, he himself became a living symbol of a judicial philosophy, a symbol so powerful that sometimes it was difficult to disentangle the judge from his jurisprudence. His status as a symbol and how he achieved his status, was much different from the route of the judges mentioned above. This paper attempts to explain how Scalia became what we call a judicial “sacred symbol”.

Download the article from SSRN at the link. 

Pedrioli on Justice Scalia's Rhetoric of Sexual Orientation

Carlo A. Pedrioli, American Bar Foundation, has published Judicial Neutrality Awash with Ideology: Justice Scalia, Sexual Orientation, and Rhetorical Personae at 21 Tex. J. C. L. & C R. 183 (2016). Here is the abstract.

In light of Justice Antonin Scalia’s having dissented from the U.S. Supreme Court’s support for sexual minority rights in a series of cases decided under the Fifth and Fourteenth Amendments, this paper, drawing upon rhetorical theory, considers Scalia’s rhetoric of sexual orientation. In his dissents in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, Scalia performed and constructed various rhetorical personae, or roles, including the first, second, and third personae, that produced rhetorical hypocrisy grounded in a heteronormative ideology. The first persona, or speaker of the dissents, that Scalia performed was that of a neutral justice. The second persona, or the audience implied in the dissents, that Scalia constructed would receive appeals to tradition and majoritarian rule favorably and, ignoring the possibility of change in tradition and likewise ignoring minority rights, be susceptible to the alleged political threat of sexual minorities. The third persona, or the marginalized party in the dissents, that Scalia constructed consisted of the sexual minority as a criminal or other individual not thought highly of, such as a person with a drug addiction, a polygamist, or a prostitute. Although Scalia’s performance of a neutral justice was skillful, his construction of the second and third personae undermined his performance of the first persona. Essentially, a justice who claimed neutrality was appealing to an implied audience that ignored minority rights and irrationally feared a small minority group. Meanwhile, the justice constructed sexual minorities as criminals or other poorly regarded individuals.

Download the article from SSRN at the link.

Rossum on Antonin Scalia's Jurisprudence

Ralph A. Rossum, Claremont McKenna College, has published Antonin Scalia's Jurisprudence: Text and Tradition (University Press of Kansas, 2016). Here is a description of the contents from the publisher's website.

Lionized by the right and demonized by the left, Supreme Court Justice Antonin Scalia is the high court's quintessential conservative. Witty, outspoken, often abrasive, he is widely regarded as the most controversial member of the Court. This book is the first comprehensive, reasoned, and sympathetic analysis of how Scalia has decided cases during his entire twenty-year Supreme Court tenure. Ralph Rossum focuses on Scalia's more than 600 Supreme Court opinions and dissents—carefully wrought, passionately argued, and filled with well-turned phrases—which portray him as an eloquent defender of an "original meaning" jurisprudence. He also includes analyses of Scalia's Court of Appeals opinions for the D.C. circuit, his major law review articles as a law professor and judge, and his provocative book, A Matter of Interpretation. Rossum reveals Scalia's understanding of key issues confronting today's Court, such as the separation of powers, federalism, the free speech and press and religion clauses of the First Amendment, and the due process and equal protection clauses of the Fourteenth Amendment. He suggests that Scalia displays such a keen interest in defending federalism that he sometimes departs from text and tradition, and reveals that he has disagreed with other justices most often in decisions involving the meaning of the First Amendment's establishment clause. He also analyzes Scalia's positions on the commerce clause and habeas corpus clause of Article I, the take care clause of Article II, the criminal procedural provisions of Amendments Four through Eight, protection of state sovereign immunity in the Eleventh Amendment, and Congress's enforcement power under Section 5 of the Fourteenth Amendment. The first book to fully articulate the contours of Scalia's constitutional philosophy and jurisprudence, Rossum's insightful study ultimately depicts Scalia as a principled, consistent, and intelligent textualist who is fearless and resolute, notwithstanding the controversy he often inspires. 

Queen Anne, Justice Scalia, and Originalism

Harold Anthony Lloyd, Wake Forest University School of Law, has published Justice Scalia and Queen Anne in the Huffington Post, July 9, 2015. Here is the abstract.

This article explores problems with several definitions of Originalism proposed by Justice Scalia in "Reading Law: The Interpretation of Legal Texts." It begins by looking at Justice Scalia's citation of a possible statement by Queen Anne that Justice Scalia claims in itself justifies Originalism. Queen Anne may have told Sir Christopher Wren that St. Paul's Cathedral was "awful, artificial, and amusing" at a time when those words meant "awe-inspiring, highly artistic, and thought-provoking." Conceding that one must understand how Queen Anne meant these terms, this article shows how this example actually undermines Originalism when applied to on-going rules. It also explores inconsistencies and problems with several definitions of Originalism including Justice Scalia's arbitrary exclusion of technology from the constraints of "original meaning." It further disputes his claim that Originalism ". . .will narrow the range of acceptable judicial decision-making and acceptable argumentation [and that it] will curb -- even reverse -- the tendency of judges to imbue authoritative texts with their own policy preferences." This article maintains that Originalism has the opposite effect.

Read the article at the link, or download it from SSRN here.

"I Dissent": Justice Scalia's Opinions Set To Music

The rock band Coheed and Cambria sets some of Antonin Scalia's more memorable words and lines from two recent important decisions to music here (via Funny or Die)--"jiggery-pokery," "applesauce," "I dissent," and my favorite, "The world does not expect logic [and precision] in poetry" (take that, bards, rhymers, and versifiers!)

For the opinions: See King v. Burwell and Obergefell v. Hodges

For the critique: Oh, you know whom to ask...TNH.

Commentaries on "Reading Law"

Micro-Symposium on Scalia & Garner's 'Reading Law', 18 Green Bag 2d 105 (2014). Here is the abstract.

Recently, the Green Bag issued a call for short (1,000 words) essays on Reading Law: The Interpretation of Legal Texts, by Antonin Scalia and Bryan Garner. We sought “[a]ny theoretical, empirical, or practical commentary that will help readers better understand the book.” The result is this micro-symposium. Our call drew dozens of micro-essays, some thought-provoking, some chuckle-prompting, and some both. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag and its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate commentary we received. May you enjoy reading the following excellent representatives as much as we did.

Download the papers from SSRN at the link.