“On case after case—most notably, in its 2022 ruling overturning Roe v. Wade—the Court has turned Scalia dissents into majority rulings. More broadly, it has adopted his principle of interpreting constitutional provisions according to the meaning they bore when they were enacted, and it has even more consistently abided by his twin textualist tenet for interpreting statutes.
“Amid such success, it’s easy to forget how distressing Scalia’s own years as a justice were. Among its many virtues, James Rosen’s excellent second volume of his monumental three-part biography of Scalia ought to remind the reader of how far the Court has come.”
“When Reagan elevated William H. Rehnquist to succeed Burger as chief justice, he appointed Scalia, 50 years young, to the associate justice position that Rehnquist had occupied. Scalia was aghast to discover the moribund intellectual culture of the Court. The justices were set in their ways: They asked very few questions at oral argument, they didn’t talk through issues at conference, they had little interest in the craft of opinion writing, and they largely kept to themselves.”
“Scalia’s dismay over how the Court operated was surpassed by his intense disagreement with so many of its major decisions in his early years. As one of his first clerks told Rosen, ‘I remember losing mostly everything that was important.’
“In just his second year on the Court, Scalia issued his booming solo dissent in Morrison v. Olson (1988). Rehnquist’s majority opinion ruled that Congress permissibly authorized a panel of judges to appoint an ‘independent counsel’ to investigate and prosecute executive-branch officials. Scalia famously observed that separation-of-powers issues often ‘will come before the Court clad, so to speak, in sheep’s clothing. … But this wolf comes as a wolf.’”
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