Editor’s Note: Richard Lazarus is the Howard and Katherine Aibel Professor of Law at Harvard University, where he teaches environmental law, natural resources law, Supreme Court advocacy, and torts. He has represented the U.S., state and local governments, and environmental groups in the Supreme Court. The views expressed are his own.
Supreme Court Justice Antonin Scalia has died at the age of 79
Richard Lazarus: Scalia's joining the bench was the advocate's equivalent of an earthquake
Justice Antonin Scalia joined the bench 30 years ago, this coming September. From his first days on the bench on that first Monday of October to his final days just a few weeks ago, Scalia changed the Supreme Court and its rulings. But his influence was far more profound and transformative than the many significant individual rulings he authored and those that he joined.
Justice Scalia did no less than change the nature of legal argument before the Court and opinion writing by the Court.
Justice Scalia was, of course, a conservative. His conservatism was expressed by his votes in a wide variety of settings: abortion, affirmative action and the death penalty to name just a few of the most obvious. And, in many of those cases, he supplied the fifth vote that made the difference between an “Opinion of the Court” with the force of law and a dissenting opinion likely to be lost in the pages of the U.S. Reports – the official reports of Supreme Court.
But Justice Scalia could surprise, too. And he clearly relished defying those who sought to apply simplistic partisan labeling to his votes in cases.
He frequently voted in favor of criminal defendants when he thought they had been denied their constitutional right to confront their accusers. In addition, based on his commitment to text, he was similarly known for embracing readings of federal statutes – even when those readings were clearly different from his own personal policy preferences.
For those like me who argue before the court, Scalia’s joining the bench was the advocate’s equivalent of an earthquake.
Before October 1986, it was possible to argue a case before the justices and not be asked any questions at all. Zero. Not so afterward. The High Court Bench is famously “hot” these days and Justice Scalia was the undoubted starter fluid for that transformation. During his very first day of argument, that first Monday of October in 1986, he peppered the federal government’s attorney with questions, making clear his presence.
The rest of the court and all new justices since have joined in. In recent years, the justices ask roughly an average of 100 questions of the lawyers in an hourlong argument, and it is not unusual for that number to approach as many as 200. No one on the court, moreover, was as persistent, as challenging, and often entertaining as Scalia.
Justice Scalia also changed the nature of the court’s opinion writing. The contrast between Supreme Court opinions written before Scalia’s joined the bench and today is stunning. Once dry, highly mechanical prose dominated by legal jargon has been replaced by opinions written in language highly accessible to non-lawyers and members of the general public.
Supreme Court opinion now can even be fun to read. And readers of the court’s work inevitably flock first to Justice Scalia’s prose, whether in an opinion of the court or a separate opinion just for himself. Even when infuriating to those he took to task, his gift at turning a phrase was undeniable.
Scalia similarly transformed the way lawyers reasoned and argued before the court. He took lawyers (including his colleagues) to task for sloppy reasoning, especially when it came to reading text, whether in the Constitution or a federal statute. One could disagree with his ultimate conclusions, but it was not so easy to deny the force of his view that legal argument should be more careful and precise. And legal argument in all cases has dramatically improved as a result of Scalia’s influence.
Former Justice Byron White famously said that you change the court when you change one justice. That is a vast understatement with the loss of Justice Scalia. His departure is of historic significance. Of course, the justices disagree often and sometimes exchange harsh words in their respective opinions
But the enormous respect, admiration, and enduring friendship they all had for each other were also clear. They will miss him tremendously, and his service on the court is worthy of the respect of the nation that he clearly loved.