In this Oct. 2015 photo, Supreme Court Justice Antonin Scalia speaks at the University of Minnesota. (Jim Mone/AP)
In this Oct. 2015 photo, Supreme Court Justice Antonin Scalia speaks at the University of Minnesota. (Jim Mone/AP)

In a recent post, Yale Law School Professor Jack Balkin offers some great insights on how the late Justice Antonin Scalia’s reputation might develop in the future. He argues that Supreme Court justices’ historical standing is largely determined by four factors:

(1) How useful is the Justice to later generations?

(2) Is the Justice central to or symbolic of the constitutional/political regime in which he or she lived? Did the Justice take prominent positions on the key decisions that arose during that regime that are still canonical today?

(3) Perhaps even more important, did the Justice stand for (or take) the “right” positions on the right issues as judged by later generations? Was the Justice on the “right side of history” as determined by later generations? Note in particular that a Justice’s methodological commitments and legal skill may often be less important to later generations than the Justice’s substantive commitments.

(4) Did the Justice have acolytes and supporters who will defend and promote the Justice’s reputation, and launder it for later generations? A good example is Oliver Wendell Holmes, Jr., who was lionized by a generation of progressives and, thereafter, by generations of Harvard Law professors and students. Even though Holmes made many bad decisions (including Buck v. Bell), he was especially useful to progressives and New Dealers, who laundered his reputation. His judicial sins, so to speak, were washed away.

I. A Great Justice or a Villain on “the Wrong Side of History”?

By these criteria, Balkin suggests, Scalia “has a definite shot” at being remembered as a great justice. Many of his opinions are potentially useful to future generations. He certainly was a leading figure of his era, and took positions on many important constitutional disputes. And, due to his status as a leading champion of originalism, Scalia has no shortage of “acolytes and supporters” who will try to promote his legacy.

On the other hand, Scalia’s vehement dissents in gay rights cases put him on what future generations are likely to regard as “the wrong side of history.” Barring an improbable resurgence of social conservatism, it is likely that both public and elite opinion will continue to shift in the direction of support for same-sex marriage and other gay rights causes. Over time, Scalia and other prominent opponents of that shift are likely to be viewed negatively. It is possible that being on the wrong side of this issue will come to dominate Scalia’s future reputation.

This is clearly what has happened to the historical legacy of justices who were leading defenders of slavery and racial segregation. In his own time, Chief Justice Roger Taney was viewed by many as a a great jurist. Today, he is remembered mostly for his authorship of the reviled proslavery decision in the Dred Scott case. If future generations view gay rights as the defining issue of the era and remember Scalia mainly for being on the wrong side of it, he could suffer a similar fate.

But I don’t think this is the most likely scenario. Although I believe Scalia was indeed wrong in most of the major gay rights cases of his time, I doubt later generations will see this as the most important aspect of his legacy, overshadowing the rest. In part because it affected far fewer people, the struggle over gay rights is unlikely to be considered the defining constitutional issue of Scalia’s era in the way that slavery was the defining issue of the 1850s, and segregation the defining issue of the mid-twentieth century.

The gay rights cases were significant, and they will count as a strike against Scalia. But his defense of originalism, and his opinions on issues like federalism, separation of powers, criminal law, and property rights, may well be viewed as at least comparably important.

As Balkin mentions, posterity is often willing to overlook the shortcomings of justices who leave a “useful” legacy for modern legal and political movements. He mentions the case of Oliver Wendell Holmes, who enjoys a great reputation despite, – among other things – authoring the Court’s notorious decision in Buck v. Bell.

Another relevant example is Justice Hugo Black, author of the Korematsu v. United States, generally considered one of the worst decisions in the history of the Supreme Court (for good reason). Korematsu caused far more harm than any Scalia opinion ever did. And it had far less basis in constitutional text or precedent than Scalia’s dissents in gay rights cases. Despite this grave blot on his record, Black enjoys a generally positive reputation today. Liberals praise his support of freedom of speech and incorporation of the Bill of Rights against the states. Many conservatives admire his textualism and originalism.

II. Division or Consensus? Why Scalia’s Reputation Might Resemble William Brennan’s.

Scalia’s historical reputation might turn out to be similar to Black’s or Holmes’: remembered mainly for his achievements, while his shortcomings are minimized. But I think it is likely that Scalia’s reputation will be more analogous to that of Earl Warren or William Brennan. These justices are beloved by many liberals. But most conservatives view them negatively. Brennan is a particularly close analogue to Scalia, in some ways. Both were associate justices who were, for many years, seen as the leaders of their particular wing of the Court. Both wrote numerous important opinions that were praised by one side of the political spectrum and ahborred by the other.

Decades after Brennan left the court, there is still no consensus about his legacy. The same may well be true of Scalia. In the future, as today, he may well be remembered as a hero by conservatives (and some libertarians). But most left-liberals will continue to view him negatively. In addition to his gay rights opinions, this division will be reinforced by his forceful opinions in affirmative action and abortion cases. Unlike gay rights, affirmative action and abortion are likely to continue to divide left and right for a long time to come.

Scalia was a far more substantial intellectual figure than Warren or Brennan. That has won him praise even from some liberal legal scholars who think he was wrong about most substantive issues, including Cass Sunstein and Jamal Greene. But, at the end of the day, Balkin is right to argue that substance plays a much larger role than technical skill in determining justices’ historical reputations. So it is likely to be with Scalia.

And, as in the case of Brennan (who otherwise had little in common with Scalia), his substantive legacy is likely to remain controversial for a long time to come. If there is a difference, it is that some of Scalia’s critics on the left may be more likely to view him as an intellectually serious opponent than is the case with most of Brennan’s critics on the right. Scalia may enjoy greater respect from his adversaries, for that reason. On the other hand, Scalia’s sometimes-harsh rhetoric often attracts more hostility than Brennan’s more soft-spoken opinions.

To a much greater extent than Brennan, Scalia also has an important legacy in nonconstitutional fields, most notably his influential advocacy of textualism in statutory interpretation. This is less ideologically divisive than his opinions on constitutional issues. But it is also less likely to be remembered by people other than experts in the field.

Scalia could go down in history as a great judicial hero, a villain on the wrong side of history, or as a polarizing figure like Bill Brennan (albeit with greater intellectual respect from critics). All three are real possibilities. But if I had to bet, I would put my money on “Brennan of the right.” In the future, as in his own time, Scalia is most likely to remain a controversial figure, at least for a long time to come. Scalia himself loved controversy. While he would surely have preferred a future where there is a broad consensus in favor of his positions, he might not have been averse to being a focus of debate long after his passing.

The discussion so far assumes that Donald Trump will either lose the election or otherwise fail in his attempts to transform the GOP and the conservative movement into a US version of the European neofascist movements, such as the National Front. If he succeeds, the political right in the US will likely end up adopting a new judicial philosophy which would render much of Scalia’s legacy irrelevant, or even inimical to their goals. In that event, Scalia’s chances of being remembered favorably by conservatives would surely diminish.

This post addresses how Scalia and other justices actually are remembered. My views on how they should be remembered often diverge from the conventional wisdom. For example, I think Holmes is greatly overrated, while George Sutherland, among others, deserves a much better reputation than he actually has. On Scalia, I think his great achievements outweigh his failings. But the latter are still significant, and should not just be “washed away.” Whether any of that actually happens, we shall see.