ABA Annual Meeting

Scalia Has Had an Impact, But Is It Lasting? Supreme Court Experts Disagree


Just how influential is Justice Antonin Scalia? USA Today’s Supreme Court reporter, Joan Biskupic, is offering some hard evidence in the debate.

Scalia has written several blockbuster majority opinions this term, suggesting that Chief Justice John G. Roberts Jr. trusts him to “hold five,” Biskupic says. At an ABA Annual Meeting program on Friday, Biskupic rattled them off. They include decisions:

Striking down California’s ban on the sale of violent video games to minors.

Barring a huge federal class-action suit against Wal-Mart by employees claiming sex discrimination.

Upholding an AT&T contract requiring individual arbitration in consumer disputes.

Panelists agreed that Scalia has managed to change the debate. He has embraced and reshaped originalism, which looks to the goals of the Framers in constitutional cases. He has disdained the use of legislative history in statutory interpretation cases, putting those who cite it on the defensive. His writing style is so colorful that Supreme Court buffs look forward to reading his opinions.

But panelists disagreed on his lasting influence. Former Solicitor General Ted Olson deems Scalia “one of the most influential justices we’ve ever had.” Kannon Shanmugam, a former Scalia clerk and a Supreme Court litigator at Williams & Connolly, says Scalia’s most enduring legacy could be his writing style, which appears to be influencing even Justice Elena Kagan in her approach to writing.

But Stanford law professor Pamela Karlan says Scalia’s long-term impact remains to be seen. Right now he’s often in the majority in split decisions. But that could change. “These things run in cycles,” she said.

The program was called “Twenty-Five Years and Counting: A Look at Justice Scalia’s Tenure on the Supreme Court.” The primary sponsor was the ABA Judicial Division.

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