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An original voice: Scalia’s many contributions to the law


Since the passing of Justice Antonin Scalia on Feb. 13, much has been written about the Justice and his effect – both in life and in death – on the Supreme Court. This has included poignant tributes from colleagues, former law clerks and lawyers; recollections of Justice Scalia’s most memorable quotes; predictions about what will happen in this Supreme Court term’s biggest cases now that a 4-4 tie is possible (an issue we had previously discussed in the context of recusal); and fiery debates about the late Justice’s legacy.  

In this week’s column, we too wanted to reflect on Justice Scalia’s profound influence. From our perspective as law students, Justice Scalia is a fixture of our legal educations. Any law student can expect to encounter Scalia opinions in his or her class readings several nights a week; in fact, Justice Scalia wrote his dissents with us students in mind.  Whether you ultimately agreed with his opinions or not, his skill as a writer was undeniable, and his sharp analysis (often combined with his legendary wit) forced students of all stripes to carefully reevaluate their assumptions and conclusions about the law. When we sat down to think about Justice Scalia’s legacy on the Court, we quickly realized that he had authored watershed opinions in nearly every major area of law in which we’d taken classes. And so, as our column’s version of an “in memoriam,” we present a selection of some of Justice Scalia’s most influential opinions across the entire spectrum of the law school curriculum:

Structural Constitutional Law: Morrison v. Olson (1988) (Dissent)

When Justice Elena Kagan spoke at Stanford Law School last year, she called Justice Scalia’s dissent in Morrison v. Olson “one of the greatest dissents ever written.” (Fittingly, Judge Sri Srinivasan, who is predicted by many to be nominated for the seat formerly held by Justice Scalia, also chose it as his favorite.) Morrison v. Olson concerned the constitutionality of appointing an independent counsel to investigate executive misconduct under the Ethics in Government Act of 1978. The Court upheld the arrangement as constitutional and consistent with separation of powers principles. In dissent, Justice Scalia warned that the statute would lead to investigations being instituted unnecessarily for political gain and would drag on because independent counsels act without oversight or other obligations to balance. He said: “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing… But this wolf comes as a wolf.” Justice Scalia’s warning proved prescient in the mid-’90s when the Office of Independent Counsel launched a sprawling investigation into President Bill Clinton. The Independent Counsel Act was subsequently allowed to expire in 1999, based in part on Justice Scalia’s warnings.

Criminal Procedure: Kyllo v. United States (2001) and United States v. Jones (2012)

Justice Scalia often aligned with the more progressive members of the Court in protecting against unreasonable searches and seizures under the Fourth Amendment. Justice Scalia showed a special solicitude for protecting one’s home and the privacy it affords. This led him in one case, Kyllo v. United States (2001), to prevent police officers from using thermal imaging devices on homes without a warrant because they could be used to reveal private things such as “at what hour each night the lady of the house takes her daily sauna and bath.” Justice Scalia’s most significant contribution, though, was framing the Fourth Amendment as not just an issue of privacy (as some members of the Court believed), but also about protecting one’s property from search. Thus, in United States v. Jones (2012), Justice Scalia penned the opinion holding that police officers cannot put a GPS tracking device on a car without a warrant because when an officer puts the tiny device onto the car, it is trespassing onto the suspect’s property, as opposed to an invasion of the suspect’s expectation of privacy. One open question without Justice Scalia on the bench is what will happen to the shape of this Fourth Amendment jurisprudence.

Evidence: Crawford v. Washington (2004)

Crawford concerned the Sixth Amendment right of criminal defendants to confront the state’s witnesses against them at trial. Prior to Crawford, the Supreme Court had held that any testimony that was sufficiently reliable could be admitted without the witness being present at trial for cross-examination by the defendant’s counsel. In Crawford, however, the Court (led by Justice Scalia) changed course and held that all testimonial statements must be tested by “the crucible of cross-examination.” This, Justice Scalia wrote, offered the only way for the jury to determine if testimony was sufficiently reliable. As Jeff Fisher (co-director of Stanford’s Supreme Court Litigation Clinic and attorney who argued Crawford before the Court) put it, “Justice Scalia understood the Constitution, and the Sixth Amendment in particular as a document really meant to restrain the government.”

First Amendment: Employment Division v. Smith (1990)

In Smith, the Court considered whether two Native Americans could be denied unemployment benefits for having used peyote, a hallucinogen that was part of their religion but illegal under state law. Under the Supreme Court’s previous test for claims regarding the freedom to exercise religion, the two Native Americans may have had a right to a religious accommodation that allowed them to violate state law for religious reasons. But Scalia’s majority opinion said no: Religious objectors are not entitled to accommodations from “neutral laws of general applicability.” The opinion reasoned that if accommodations were granted in such cases, we’d have “a system in which each conscience is a law unto itself.” After Smith, Congress reacted by passing the Religious Freedom Restoration Act (RFRA) in an attempt to restore the previous test. Thus, RFRA is now the main governing law in free exercise challenges to federal laws, including the challenge to the Affordable Care Act in Burwell v. Hobby Lobby Stores (2014), which held that closely held corporations were entitled to a religious accommodation that freed them from providing female employees access to contraception.

Contracts: AT&T Mobility LLC v. Concepcion (2011)

Among the decisions in which the Supreme Court has become increasingly pro-business, Justice Scalia’s majority opinion in Concepcion broadly construed the Federal Arbitration Act to prevent implementation of state court rules aimed at protecting class action lawsuits. The effect of Concepcion was to allow businesses to put mandatory arbitration clauses (by which consumers give up their right to sue in court and are instead directed immediately to arbitration) into standard form contracts, which consumers cannot change. (These include things like rental car agreements, iTunes terms of service, and UPS receipts, for example.) Concepcion thus made it easy for companies to protect themselves from class-action suits by requiring all consumers to waive their right to suit in order to purchase goods or do business with the companies.

Administrative Law: Whitman v. American Trucking Association (2001)

While the specifics of the decision aren’t terribly interesting – the Court held that the Environmental Protection Agency could not take cost into account when setting air quality standards under the Clean Air Act – Justice Scalia’s opinion is most known for the concept that Congress does not “hide elephants in mouseholes.” His point was that if Congress is going to fundamentally alter the way an administrative agency operates, it must do so clearly and explicitly. This quote has been applied in cases concerning a host of different topics including the right to die and the eligibility of patents.

Civil Procedure: Shady Grove Orthopedic Associates v. Allstate Insurance Co. (2010)

Shady Grove may be best known among lawyers and law students for the doctrinal mess it created. The case concerned the rules that a federal court uses when hearing a case that involves only state law. The generally accepted rule was that federal law applied to “procedural” rules and state law applied to “substantive” rules. But this left the question of what those labels really meant. Justice Scalia, writing for three Justices, answered that rules governing the “manner and means” of enforcing rights were procedural, while rules altering “the rules of decision” would be substantive. Meanwhile, a concurring judgment suggested that some procedural rules were “so intertwined” with the outcome of a case as to become functionally substantive, and a dissenting opinion would have held that the Court should just look at whether the state thought its rules were substantive or procedural. The combination of vague definitions and a fractured Court that did not have a majority supporting any definition left lower courts without very clear guidance on what rules to use. Perhaps the arrival of a new Supreme Court Justice at some point will be able to clarify the morass.  

Statutory and Constitutional Interpretation: Textualism

While Justice Scalia will be remembered for many things, his most profound effect on the Court was to change the way it interpreted laws. For decades, if not centuries, Justices had sought to deduce the “intent” of statutes and constitutional provisions by reference to legislative history (that is, the statements of those who drafted the documents). Instead, Justice Scalia argued, judges ought to look at the plain meaning of the enacted text, as it would have been commonly understood at the time of enactment. Justice Scalia was fond of writing in his opinions that the United States is “a government of laws and not of men” and that only the words of the enacted laws, and not the intentions of the men and women who enacted them, should govern the people.

Thus, in King v. Burwell (2015), in which the majority held that healthcare exchanges established by the federal government received the same treatment as exchanges established by the state, Justice Scalia penned a particularly impassioned dissent, writing incredulously that “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State.’” Although in Burwell the Court did not adopt Justice Scalia’s ardent textualism, it is undeniable that he moved the Court to embrace textualism far more than it previously had.

In the words of Brian Wolfman, another co-director of Stanford’s Supreme Court Litigation Clinic, “Because of Justice Scalia’s approach to the interpretation of legal texts, particularly (but not only) statutory texts, all of us were forced to shift how we construct legal arguments… Because of Justice Scalia, more than anyone else, textualism has become the dominant mode of statutory interpretation in the federal courts, and every sensible litigator must account for this when crafting her arguments.”

Justice Scalia’s absence will undoubtedly change the Court, but his presence will be felt in the law — and in law students’ nightly readings–for a long time to come.

Contact Alex Twinem at atwinem ‘at’, Danny Kane at dkane ‘at’, Brittany Jones at bjones2 ‘at’ and Michael Qian at mfqian ‘at’

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