If you want to win over Supreme Court justices, quote Antonin Scalia

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Justice Antonin Scalia’s sudden death 10 years ago this month reordered the Supreme Court, presidential politics and, as seen at the court today, invigorated the status of the man himself.

Scalia, who died at age 79 at a Texas hunting lodge, was a conservative luminary, by turns, charming and caustic. He wrote and moved with verve, drawing standing-room-only audiences, mostly fans but even critics who were riveted by his piercing rhetoric, operatic gestures and confident originalism.

As Scalia himself acknowledged, originalism – the theory that holds judges should interpret the Constitution based on the 18th century understanding of the document – was considered a fringe approach when he joined the court in 1986.

“I used to be able to say, with a good deal of truth, that one could fire a cannon loaded with grapeshot in the faculty lounge of any law school in the country and not strike an originalist,” Scalia said at a Federalist Society conference in 2008, adding that it had since gained “the status of respectability.”

Today, originalists are everywhere. So is the spirit of Scalia. The adherence to Scalia’s methods reflects the sea change in constitutional law – a conservative transformation that he helped ignite but did not live to see in its fullness.

Rarely does a lawyer come before the court without some argument related to an originalist reading of the Constitution, or, if the dispute tests how to interpret a federal statute, come without references to Scalia’s other signature approach, textualism. Scalia believed judges should construe statutes based on their text – the precise words – rather than by relying on contemporaneous congressional committee reports, floor statements and other items of legislative history.

Take the dueling arguments over President Donald Trump’s tariff power as one example. When the case was argued in early November, lawyers on both sides cited the Federalist Papers or early commentaries on the Constitution to back up their claims about the breadth, or alternatively, limit, of the president’s tariff power.

And as they clashed over the meaning of a statute letting the president “regulate” the importation of foreign goods during a national emergency, they offered dueling dictionary definitions. (Scalia armed himself with multiple dictionaries, including Samuel Johnson’s 1773 edition.)

Last month, lawyer Paul Clement highlighted “the plain meaning, the dictionary definitions of” a contested statutory phrase as he rebuffed suggestions he was reading the law too broadly. “I think we should sort of take Congress at its word in the text of the statute,” argued Clement, a former US solicitor general who once served as a Scalia law clerk. (The statute allowed federal courts to hear civil cases against certain federal officers. The oil companies Clement represented were seeking to transfer a state claim to federal court; they said the dispute traced to oil production under a government contract during World War II.)

Justice Stephen Breyer, now retired, criticized Scalia’s interpretive approach and wrote his own books advocating a pragmatic method that considered evolving societal values and the consequences of decisions. Breyer, a liberal appointee of President Bill Clinton, increasingly found himself in dissent as Trump’s appointees joined the bench.

In an interview with CNN’s Wolf Blitzer, Breyer said he used to tell his colleague, “If we follow you, Nino, we’ll have a Constitution that no one would want.”

Every (conservative) justice looks to Scalia’s history

The high court is now controlled by a right-wing supermajority, solidified by the 2020 appointment of Justice Amy Coney Barrett.

Barrett relied heavily on a 1999 Scalia decision in one of the most important cases last year, Trump v. Casa. Writing for the six-justice conservative majority, Barrett said district court judges lacked the authority to block Trump’s executive orders with “universal injunctions” that would affect litigation throughout the country. Barrett said such injunctions, used in the case at hand to block Trump’s effort to dissolve birthright citizenship, had no “founding-era forebear.”

“The bottom line?” wrote Barrett, who was one of Scalia’s law clerks in 1999 as he wrote that advantageous precedent. “The universal injunction was conspicuously nonexistent for most of our Nation’s history. Its absence from 18th- and 19th-century equity practice settles the question of judicial authority.”

Hardly a week goes by when Scalia isn’t cited by one of the justices in some form.

Chief Justice John Roberts in January quoted two distinct lines from Scalia’s writings as he issued an opinion siding with a Republican congressman who challenged rules for counting mail-in ballots. “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance … ,” Roberts wrote as he cited a Scalia opinion from the 2000 Bush v. Gore litigation.

Roberts also plucked a line from a 1983 essay by Scalia related to determining when plaintiffs have a sufficient stake in a case to sue: “What’s it to you?”

In November when Justice Samuel Alito challenged a lawyer’s interpretation of an opinion written by Scalia, Alito asked incredulously, “So you’re saying the founding father of textualism doesn’t understand textualism?”

Alito has long subscribed to originalist and textualist methods, as has his closest ally on the far right, Justice Clarence Thomas. Their views have been reinforced by the three appointees of President Donald Trump: Barrett, Neil Gorsuch and Brett Kavanaugh. Devotion to originalism and textualism has also intensified in the lower courts and the nation’s law schools.

“His views are definitely ascendant,” Vanderbilt University law professor Brian Fitzpatrick said. “He’s having more influence now than he ever had.”

But Fitzpatrick, a former law clerk to Scalia, quickly added that the generation of young lawyers who’ve adopted his methods is more rigid. “At the time, maybe it didn’t seem like it, but Scalia was quite pragmatic. The younger generation of textualists and originalists consider themselves more pure than Scalia. He gets all the credit in the world for putting these things on the map, but there’s been a natural working out of the methods.”

Scalia’s death and Trump’s election

Scalia’s death shocked the world of law – and the surrounding political arena as the 2016 presidential election was heating up.

Word of Scalia’s passing on February 13, 2016, spread within hours from his family to close friends, including longtime conservative advocate Leonard Leo, to then-Senate Republican Majority Leader Mitch McConnell, to Don McGahn on Trump’s campaign team. (McGahn became Trump’s White House counsel.)

President Barack Obama had 11 months left on his term, but the immediate sentiment among that small klatch of influential conservative Republicans was that the vacancy should be held for whoever was elected the next president.

At a Republican presidential debate, coincidentally scheduled that February 13 evening, Trump conveyed the message: “Delay. Delay. Delay.” Further appealing to establishment Republicans and the conservative base, Trump in May 2016 put out a formal list of possible nominees and then kept adding to it. He made the court vacancy a priority in his messaging against Democratic challenger Hillary Clinton, a former secretary of state.

Maureen Scalia, the wife of the late justice, supported Trump with a yard sign at her home, and after his upset victory, was among the special guests invited to Trump’s East Room announcement of then-US Appeals Court Judge Gorsuch as Scalia’s successor.

Trump spoke about the ideal of Scalia as he made his subsequent choices for the bench. While his interpretive methods were well known among lawyers and judges, the rest of America was likely more aware of his vigorous support of Second Amendment gun rights and unyielding opposition to abortion rights and same-sex marriage.

When Gorsuch, Kavanaugh and Barrett, joined by Thomas and Alito, overturned Roe v. Wade and nearly a half century of abortion rights in 2022, Alito’s opinion for the majority and the other justices’ concurring statements repeatedly quoted Scalia.

“As Justice Scalia stated, the ‘States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so,’” Kavanaugh wrote in a concurrence that echoed Scalia in a 1992 case.

‘This wolf comes as a wolf’

Scalia’s legacy is also manifest in the prominence of his former clerks who appear at the courtroom, beginning with US Solicitor General D. John Sauer, named by Trump last year to be the government’s top lawyer before the court.

“In addition to his tremendous influence in originalism and textualism,” Sauer told CNN, “Justice Scalia’s views on the separation of powers continue to have visionary and lasting impact. His opinions and writings in this area, including his famous dissent in Morrison v. Olson, will be cited and debated extensively in litigation over the separation of powers for the foreseeable future.”

The full quotable section from Scalia’s dissent in Morrison v. Olson, as the court upheld a law allowing judges to appoint independent counsels to investigate high-ranking government officials, was: “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, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.”

Usually, the line is adopted straightforwardly, as lawyer Roman Martinez used it in December to criticize an opposing lawyer’s challenge to a federal campaign-finance limit on political parties: “This wolf comes as a wolf. He has basically told you that they’re going to keep litigating to knock down every single one of the restrictions, and that includes the limits on donors to candidates directly.”

But Sauer let the wolf metaphor run further during that same December week as he argued that Trump’s executive power permitted him to fire an independent officer at the Federal Trade Commission, even though a statute protected her.

“Here, though, this wolf comes as a wolf, right?” Sauer told the justices. “I mean, the restriction on executive power is right there in the statute.”

A minute later, Sauer just could not stop himself: “I can’t address all the wolves in the world, but this wolf, when it comes to constitutional structure, is Fenris, the most dangerous wolf in – in the history of Norse mythology.”

The-CNN-Wire
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