My chance to witness Justice Antonin Scalia’s powerful sway in the conservative legal movement came in 2008. He was promoting his recently released book, “Making Your Case: The Art of Persuading Judges,” at a Federalist Society event. Sitting in the grand ballroom of a Washington hotel, I listened alongside hundreds of young, star-struck conservative law students as the justice discussed legal reasoning, persuasion and argumentation.
During the question-and-answer period, a young man stood up and asked Scalia, “What do you consider to be the most important opinion you’ve ever written?” Scalia paused, just for a moment, and responded: “My dissent in Morrison v. Olson.”
As he began to recite from memory part of his lone dissent in this rather obscure separation-of-powers case, a chorus of voices rose up from the audience to join him:
Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident. … But this wolf comes as a wolf.
These young, conservative law students, reciting Scalia’s dissent as if it were Holy Scripture, were all members of the Federalist Society for Law and Public Policy Studies. And they are the primary reason that, contrary to what recent commentators have suggested, originalism will not die with Scalia.
Although the silhouette of founding father James Madison graces the Federalist Society’s official logo, the organization itself bears the unmistakable imprint of Scalia. As I detail in my book, “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Scalia was one of the founding faculty advisers to the Federalist Society when it started as a small law student group at the University of Chicago.
In addition to providing mentorship and professional direction as they worked to build the society, then-Professor Scalia provided intellectual support for the group, helping members translate their philosophical commitments into legal principles. Federalist Society founder Lee Liberman Otis explained to me that the society’s statement of principles, which has guided the organization since it was founded in 1982, was deeply influenced by Scalia and his teaching. The single most important, unifying commitment of the Federalist Society is its embrace of originalism – the idea that the Constitution should be interpreted according to its original meaning. Although Scalia did not invent the theory, he was arguably the most visible and vocal proponent of it, and remained so until his death.
Thirty-five years later, with upward of 40,000 members and with nearly half of the Supreme Court under its sway for the past decade, the movement Scalia helped unleash has been attempting to push his originalism further than ever before. And to the disappointment of many within the movement, Scalia was not always willing to follow. This reluctance provoked prominent Federalist Society members to condemn or critique him for his “faint-hearted originalism.”
Even Scalia’s majority opinion in District of Columbia v. Heller, a 2008 case that established an individual right to bear arms, generated criticism. Originalist scholar and Federalist Society member Nelson Lund wrote that Scalia’s analysis in Heller was an “embarrassment” to originalism. Heller was a test, he writes, and “Justice Scalia … flunked.”
In the three decades that Scalia was on the bench, the theory of originalism grew up and, in doing so, outgrew Scalia’s intellectual influence. Originalism evolved from being, as Scalia described it in his famous 1988 William Taft address, “the lesser evil” to a call to arms for conservatives and libertarians to openly and defensibly abandon judicial restraint in favor of “judicial engagement” whereby judges and justices should aggressively follow originalism, wherever it leads – even if that means dismantling long-settled jurisprudence and upending the entire post-New Deal administrative state. This faction of aggressive originalists – a faction that seems to be gaining dominance within the Federalist Society – looks not to Scalia, but instead to Justice Clarence Thomas as embodying what one member referred to as the “pure Federalist Society model” in judging.
Electoral politics will dictate, more than anything, just how much sway originalism – either in its “faint-hearted” or more aggressive strains – holds on the Supreme Court for now. But even if Republicans find themselves on the losing end at the ballot box for the next decade, originalism is now a welcome if not integral part of the conversation in law schools in a way that it was not before the 1980s. Even liberals take it seriously, sometimes seriously enough to try to co-opt it. Because of that, we should not expect originalism to go away anytime soon.
Originalism will live on in Scalia’s opinions and dissents, which, like Morrison v. Olson, law students will continue to learn and commit to memory. In the short term, it will live on in the work of Justice Clarence Thomas, described to me as the jurist least afraid to follow originalism to its logical conclusion in his rulings. And it is alive and well in the Federalist Society – an organization that, having outgrown Scalia intellectually, might actually prove to be his most important and enduring legacy.
Amanda Hollis-Brusky is an assistant professor of politics at Pomona College in Claremont, Calif., and the author of “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution.”