Scalia: A Court of One by Bruce Allen Murphy (Simon & Schuster).

On October 15, 1987, as Justice Antonin Scalia settled into his second term at the Supreme Court, he emerged from conference with his eight colleagues to discover a peculiar scene unfolding within the building’s typically staid corridors. Just outside of the conference room began a seemingly endless trail of white placards decorating the hallway carpet. On each placard, in handwritten lettering, appeared the name of a single prominent opinion that Justice William Brennan had written for the Court during his lengthy, high-profile tenure. Brennan’s law clerks had assembled the parading placards to honor the liberal hero’s thirtieth anniversary on the Court. As Brennan approached each sign, a law clerk later recalled, he would gleefully exclaim yet another landmark opinion’s name and then pause for a moment to recall his handiwork. Brennan was unaware that the Court’s newest member was following him only a few steps behind, grimly inspecting the assemblage of cases along the way. If Brennan was enjoying a stroll down Memory Lane, Scalia was enduring a slog up Trauma Avenue. For Scalia, Brennan’s extended run of liberal victories came at the cost of distorting the judiciary’s proper role in a democracy. When the trail of placards finally ended at Brennan’s chambers, Scalia managed to find a good-natured way of expressing his deep disagreement: “My Lord, Bill, have you got a lot to answer for!”

Today, some twenty-eight years into Scalia’s justiceship, legal liberals increasingly understand that he has a considerable amount to answer for in his own right. But Scalia’s legacy, unlike Brennan’s, would not be especially apparent from aggregating the landmark opinions that he has written on the Court’s behalf. This discrepancy does not mean that Scalia’s résumé is altogether lacking in this regard. During the last decade alone, Scalia has issued major opinions redefining the Second Amendment’s protection for firearms possession in District of Columbia v. Heller and the Sixth Amendment’s Confrontation Clause in Crawford v. Washington. Even accounting for Scalia’s many memorable opinions written in dissent would inadequately trace his legal imprint.

Instead of his influence being confined to a discrete set of writings or narrow doctrinal categories, Scalia has shaped modern American law in ways more overarching and even elemental. Elena Kagan, when she was dean of Harvard Law School, expressed this point vividly while presiding over Scalia’s return to his alma mater in 2007. “His views on textualism and originalism, his views on the role of judges in our society, on the practice of judging, have really transformed the terms of legal debate in this country,” Kagan said. “[Scalia] is the justice who has had the most important impact over the years on how we think and talk about the law.” This statement can be understood to identify Scalia’s influence as occurring within at least three distinct arenas, each requiring some elaboration.

First, when Kagan invoked “textualism,” she referred to the Court’s increased emphasis on legislative text when confronting a question of statutory interpretation. Put slightly differently, Scalia has waged an incredibly successful war against judges relying upon legislative history to determine a statute’s meaning. When judges resort to materials such as committee reports or legislators’ floor statements about a bill, Scalia claims, they almost invariably cherry-pick statements supporting their preferred outcomes. Scalia, amplifying a critique initially pressed by Judge Harold Leventhal, has condemned using legislative history as the “equivalent of looking over the faces of the crowd at a large cocktail party and picking out your friends.” Judicial usage of legislative history has not exactly gone extinct, but relative to its heyday in our not-so-distant legal past, it has rapidly become an endangered species. No legal figure has played a more critical role in the decline of legislative history than Scalia; it is this development that represents his most pervasive influence on how judges write opinions every day throughout the nation.

Second, when Kagan mentioned “originalism,” she highlighted Scalia’s preferred mode for interpreting the Constitution by appealing to history. The concept of originalism certainly existed long before Scalia became its most familiar practitioner. But Scalia played a pivotal intellectual role in refining the concept. Shortly before his Supreme Court nomination, Scalia delivered a major address calling on originalists to relocate their fundamental inquiry. Rather than searching for the “original intent” of constitutional Framers, Scalia insisted, originalists should search for the Constitution’s “original meaning” for the public. This shift toward “original meaning” represented a shrewd intervention, suggesting that the Framers’ own understandings of constitutional text were less important than what ordinary citizens would have understood that text to mean. Perhaps as importantly, Scalia has advocated originalism tirelessly, availing himself of innumerable public- speaking opportunities to disseminate his constitutional theory.