Liberals and conservatives alike use similar adjectives to describe Justice Antonin Scalia — “towering,” “transformative,” etc. One reason is that he singlehandedly created a judicial approach (originalism in constitutional interpretation, textualism in statutory interpretation) that dominated conservative thought. But he also altered the way liberals thought about judging. Michael W. McConnell writes:

When Justice Scalia arrived at the Supreme Court in 1986, its jurisprudence had become sloppy, results-driven, plagued with fuzzy three-part tests and fuzzier four-part tests, all of them concocted by his predecessors with little basis in constitutional text. Today, the entire court — even the liberal justices — have adopted Justice Scalia’s style: close attention to text, awareness of history, analytical rigor. The Supreme Court has not announced an impressionistic multipart “test” in years. . . .
His opinions make clear their premises. They follow logically. Sometimes students point out that Justice Scalia is not being true to his principles. That is a compliment, because it means he has principles that can be identified and objectively applied. Many justices have no principles for interpreting the Constitution, other than to see in it their own opinions about the issues of the day. Every year, in Constitutional Law, a liberal student will raise his or her hand and say, sheepishly, “I never thought I would say this, but I agree with Scalia.” That is because his highest commitment was to rational deduction from our highest law.

In very similar terms Justice Elena Kagan tells us: “Nino Scalia will go down in history as one of the most transformational Supreme Court Justices of our nation. His views on interpreting texts have changed the way all of us think and talk about the law.”

Indeed, it is a tribute to Scalia that even judges appointed by Democrats tell the Senate Judiciary Committee that they are there to “interpret, not make the law.” The confirmation hearings for now-Justice Sonia Sotomayor were telling, as the Post reported in 2009:

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The hearings “did serious damage to the cause of progressive thought in constitutional law,” said Geoffrey R. Stone, a University of Chicago Law School professor who was dean there when Obama joined its faculty. Doug Kendall, president of the Constitutional Accountability Center, a liberal think tank, called them “a totally missed opportunity. . . . The progressive legal project hit rock bottom [last] week.” . . .
At her hearings, she distanced herself from public remarks off the bench that, according to the GOP, suggest a gender and ethnic bias. She distanced herself, too, from Obama’s view that a judge should have empathy — an idea floating within liberal legal thought. And she concealed her views on issues important to the left, including abortion, gun control and same-sex marriage, as well as the civil rights matters Cardin raised.

In other words, if not in practice, then in theory, liberal justices no longer want to own up to “making it up as they go along.” Sotomayor insisted, “Judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law.” Liberal law professors and commentators were beside themselves. (“How could someone who has been on the bench for 17 years possibly believe that judging in hard cases involves no more than applying the law to the facts?”) That’s the influence of Scalia. (At the time, the Democrats in the Senate had a substantial majority so her confirmation was not in doubt.)

Law review articles readily acknowledged, “Beginning in the late 1980s and continuing through the 1990s, agencies, academics, and judges began to assert, with increasing stridency, the notion that using legislative history is unconstitutional. Textualism’s most insistent advocates decried recourse to legislative history as ‘illegitimate’ and ‘shameful.'” Liberal law professors may have deplored the view, but they readily acknowledged that text, not murky legislative history found in snippets of a committee report or a senator’s floor speech to an empty house,  now control statutory interpretation. That was Scalia, too.

Public intellectuals like to influence those in sympathy with their own views and to debunk their opponents. But it is a rare figure who forces his opponents to start thinking as he does. Through the sheer force of his intellect and the persuasiveness of his writing, that is what Scalia accomplished. And while there have been great justices appointed by presidents of both parties, there has never been someone who so affected how the entire legal profession and courts went about their business. He was unparalleled in this regard.

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