Tom Ginsburg on the Supreme Court After Scalia

After Scalia: A More Collegial Court?

With the passing of Justice Antonin Scalia, the country loses a giant of American law. Scalia's audience was bigger than that of most justices: as the most prominent exponent of originalism and textualism, he was speaking as much to the public, and to present and future law students, as to his colleagues on the Court. He was a great dissenter, who embellished his opinions with language sure to get the attention of casebook writers. His hope was that his views would one day carry the day, as they did for earlier masters of dissent like Oliver Wendell Holmes .

In his love of debate and sheer joy in argument, Scalia embodied a commitment to rigorous pursuit of knowledge. We at the University of Chicago, where he taught before being appointed the federal judiciary, like to think of him as the most prominent exponent of our culture of vigorous discussion. More than most justices, he dwelt in the realm of ideas. But he was also a superb communicator.

Justice Scalia was also the extreme example of a pronounced trend on the Supreme Court: identifying justices with their individual personae rather than as members of a collectivity. His opinions were full of pithy phrases that fit today's 144-character format, even as they heralded an older tradition of rhetorical flourish. Both his conservative and more liberal colleagues were frequent targets of his caustic pen and antiquarian epithets: he was prone to accusing colleagues of jiggery-pokery, argle-bargle, and manufacturing "pure applesauce". These terms sent law professors scurrying to their dictionaries, and inspired the hashtag term #Scaliaism.

Yet, in cultivating outside audiences and reaching to the broader public, Scalia's influence on the Court itself may have suffered. Though personally friendly with his colleagues, he was not always able to persuade them to come around to his views.

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