My New One at WaPo on the Second Anniversary of Justice Scalia’s Death: “Antonin Scalia’s disruption of the Supreme Court’s ways is here to stay”

I have written this piece for the Washington Post. A snippet:

Scalia disrupted business as usual on the court just like Gingrich disrupted the U.S. House of Representatives in the 1990s and Trump is now disrupting the presidency. Scalia changed the way the Supreme Court writes and analyzes its cases and the tone judges and lawyers use to disagree with each other, evincing a pungent anti-elitist populism that, aside from some criminal procedure cases, mostly served his conservative values. Now the judiciary is being filled at a frenetic pace by Trump and Senate Republicans with Scalian acolytes like Supreme Court Justice Neil M. Gorsuch, who will use Scalia’s tools to further delegitimize their liberal opponents and continue to polarize the federal courts….

Scalia came in with different ideas, which he said were compelled by the limited grant of judicial power in the Constitution and would increase the legitimacy of judicial decision-making. He offered revamped, supposedly neutral jurisprudential theories. Yet, as I argue in my upcoming book, “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption,” his doctrines were usually flexible enough to deliver opinions consistent with his conservative libertarian ideology.

He was an “originalist” who believed that constitutional provisions should be interpreted in line with their public meaning at the time of enactment, as when he argued that the 14th Amendment’s equal protection clause did not apply to sex discrimination — except when he wasn’t, as when in affirmative action cases, he consistently ignored evidence that at the time the equal protection clause was ratified, Congress enacted preferences specifically intending to help African Americans.

Under his view of “textualism,” the interpretation of statutes turned on wordplay. He refused to look at “legislative history” such as committee reports to figure out what members of Congress thought a statute meant. He’d instead pull out a dictionary and try to parse the words like a grammar lesson. It was this unremitting textualism that led him to dissent in the 2015 case King v. Burwell, one of the court’s Obamacare cases. If it were up to Scalia, the law would have gone into a death spiral because of his interpretation of a single clause of a single sentence in the 2,700-page statute read out of context. But he was not always a textualist — other times, as in an obscure case involving the admission of evidence that a witness had committed a crime, Scalia argued for rewriting a statute “to do least violence to the statutory text” when its meaning was “absurd.”

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