THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA

Vol. 29 No. 11 (December 2019) pp. 131-133

THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA, by David A. Schultz and Howard Schweber (eds). Lanham, Maryland: Lexington Books, 2018. 376pp. Cloth $120.00. ISBN: 1498564488.

Reviewed by Jeffrey R. Dudas, Department of Political Science, Executive Committee, American Studies Program, University of Connecticut. Email: jeffrey.dudas@uconn.edu.

The predicament of fairly and accurately reviewing an edited volume of scholarly essays is a familiar one; it is a challenge perhaps only eclipsed by the construction and oversight of such a volume in the first place. It is daunting for the reviewer, even in a venue as generous with space limitations as is the LAW AND POLITICS BOOK REVIEW, to know how to proceed. Should the review feature a summary and short analysis of each of the volume’s essays? Should it alternatively assess the overall themes of the volume – themes that may suffuse some of the essays while being mostly absent from others? Is the presence or absence of such themes legitimate grounds for criticism (or praise) of either the individual essays or the volume as a whole? The best answer, I suppose, is that reviewers of edited volumes should attempt to do at least some of all of these things. So here goes.

Professors David A. Schultz and Howard Schweber have commissioned and collected 13 essays authored by an accomplished group of scholars that together assess the many legacies – legal, political, and cultural – of deceased U.S. Supreme Court Justice Antonin “Nino” Scalia. In particular, the volume’s essays follow the lead of its title, accepting its premise (and frequently persuading the reader) that the late Justice’s collected work product can be usefully described as THE CONSERVATIVE REVOLUTION OF ANTONIN SCALIA. The contours and influences of that revolution are, however, ambiguous: Was Scalia’s promotion and use of the interpretive theory of “originalism” as important for the Court’s jurisprudence as his champions (and some critics) insist? Was Nino’s heightened, combative tone towards his opponents, both on and off the Court, a harbinger of the more “populist” elaboration of modern American conservatism that now seems to predominate? Is it possible, instead, that Scalia’s greatest impact – the “conservative revolution” for which he will be most remembered – points less to jurisprudential innovation and more to the sanctification of neo-conservative purpose with the imprimatur of “neutral” legal principle? The great strength of the 13 essays that Schultz and Schweber have cultivated is not that they offer definitive answers to any of these questions but rather that they ask those questions in the first place.

Consider Scalia’s originalism. At least five of the essays (those authored by Atwell, Smith and Jacobs, Merriam, Feldman, and Kahn and D’Emilio) make abundantly clear that this interpretive method – which insists that objective constitutional meaning can be derived from a historical investigation of then-contemporary common linguistic understanding – is the primary innovation upon which Scalia’s potential reputation as a “great jurist” rests. But as all of those essays also make clear, there were multiple issues with Nino’s originalist proclivities. For one, it turns out that his own use of originalism was highly selective. Scalia tended to employ the method with great fanfare whenever it could be plausibly marshalled to support his favored policy outcomes – outcomes that, as the excellent essays by Atwell, Merriam, and Feldman make clear, just so happened to endorse neo-conservative positions on race, gender, sexuality, executive authority, and Christianity. Conversely, and with very rare exceptions, when originalism appeared to endorse non-conservative positions, Scalia abandoned the method entirely, relying upon other jurisprudential moves such as plain meaning textualism and stare decisis. [*132]

And this is to say nothing of the flimsy historical investigations that Scalia and his clerks conducted when applying originalism. Indeed, I learned from several of these essays that Scalia not infrequently based the “original” meaning of constitutional provisions solely on then-contemporary dictionary definitions of the words in question – a reliance that would, I imagine, prompt either head-scratches or belly laughs (or maybe both) from actual, professional historians. Such selective, amateurish uses of history underscore the most acute and damning criticism of originalism: the inevitable ambivalences of history make ash of any attempts to find singular meaning or intention in the records of our past. Imagining that stable, neutral meaning can be found in history and then claiming that neutral ground as foundation for non-discretionary, allegedly non-political interpretations of law is at once folly and, in Scalia’s case, pretense (Kahn and D’Emilio call it a “fa├žade”) for other (deeply-political) goals.

It is thus unsurprising that this volume’s authors tend to dismiss Scalia’s intellectual impact either on the Court’s jurisprudence itself (multiple essays, including Schultz’s analysis of Scalia’s administrative law record and Smith and Jacobs’s analysis of his criminal law opinions, find Scalia’s impact to be modest at best) or on the canon of constitutional interpretation writ large. Oddly, however, the volume’s final essay, authored by James Staab, strikes a discordant note on this front. Indeed, Staab relies upon seven measures that are typically employed by scholars who consider such matters to find that Scalia was a “near great” Justice. Staab departs from the other authors by maintaining that Scalia “left an indelible mark on the law” (p. 316). This final refutation of one of the overarching findings of the volume as a whole amounts, depending upon the reader’s perspective, either to a welcome correction or a troubling aberration.

If, notwithstanding Staab’s objections, we agree with the volume’s common conclusion that Scalia’s impact on the Court and in the interpretive canon of constitutional law was marginal, where do we find Nino’s titular “conservative revolution”? The volume’s authors propose multiple answers in this regard. Ironically, two of the essays double down as if on a switchback path and return to Scalia’s influence on the U.S. Supreme Court itself – not on its work product (its jurisprudence, its interpretive method, etc.) but rather on its style and process. A truly innovative essay by Johnson, Black, and Owens considers Scalia’s behavior during oral argument and the possibility that his (in)famously combative and verbose interpersonal style altered the practice itself. Their results are tentative, but Johnson, et.al. do persuasively make the case that Scalia’s behavior does in fact seem to have been a trendsetter, with a greater number of justices speaking during hearings, asking more questions, and interrupting both the attorneys and each other more frequently since Nino’s confirmation. Whether or not, or how, such altered practices point to partisan political trends (to a “conservative revolution”) is left to the reader to divine – though one can imagine the apparently heightened contention and aggression that has emerged during oral arguments as consistent with the cantankerous intellectual style that, according to historian Kevin Mattson, is the defining attribute of postwar American conservatism (Mattson 2008). Similarly, a strong essay by Denison and Wedeking examines Scalia’s confirmation process, making the counterintuitive yet persuasive argument that the nearly complete lack of scrutiny given to such an outspoken and ideologically-committed nominee made Nino the last, rather than the first, of his kind; future Supreme Court nominees, as we know well, would not so easily pass Congressional scrutiny.

I have spent a great deal of my own intellectual energy connecting prominent American conservatives to the political and cultural environments in which they are embedded and to which they contribute (Dudas 2017); I will admit to showing my scholarly colors when I confess that, for me, the most outstanding essay in this volume of uniformly strong essays is the one authored by Jesse Merriam. Indeed, Merriam carefully shows how, on one hand, Nino’s sanctification of neo-conservative policy positions with the elevated discourse of law and rights converted those positions from the [*133] profane to the sacred, imbuing them with a legitimacy and surface neutrality that they previously lacked; and he shows how, on the other hand, Scalia’s bracing pronouncements both on and off the Court contributed meaningfully to the late 20th century turn within American conservatism towards the type of neo-conservative principles that had been bubbling just under the surface of conservative intellectual debate since the 1970’s. Merriam’s essay thus provides an especially useful path to understanding, and further exploring, Scalia’s outsized influence on American conservative politics and the “conservative revolution of Antonin Scalia” itself.

It is a revolution that, according to the overwhelming evidence in Schultz and Schweber’s volume, is ironically unlikely to be found in either the intellectual product of the U.S. Supreme Court or in the canons of American constitutional interpretation. Instead, as Merriam intimates, Scalia emerges most clearly in the non-legal, conservative mind. Thus, Scalia’s iconic status is reflected not in his originalism or in his modest jurisprudential impact but rather by his inclusion in the pantheon of prominent Americans whose misfortunes in life and death have inspired perhaps the most deranged of America’s contemporary fever dreams. Just two days after the Justice’s 2016 death at a luxury hunting ranch in Montana, allegations surfaced that the massive coronary that killed Scalia was induced by chemical injection (Sun and Horwitz 2016). The culprit of the fatal conspiracy was somehow known to all, even if it would take a few months for the “proof” to emerge: Antonin Scalia, lion of modern American conservatism, was the victim of a sinister plot carried out on behalf of Hilary Clinton’s ill-fated presidential campaign (LaCapria 2016).

REFERENCES:

Dudas, Jeffrey R. 2017. RAISED RIGHT: FATHERHOOD IN MODERN AMERICAN CONSERVATISM. Stanford, California: Stanford University Press.

LaCapria, Kim. 2016. “Wikileaks Exposes Clinton Assassination of Antonin Scalia?” SCOPES, October 14, 2016.

Mattson, Kevin. 2008. REBELS ALL! A SHORT HISTORY OF THE CONSERVATIVE MIND IN POSTWAR AMERICA. New Brunswick, New Jersey: Rutgers University Press.

Sun, Lena H. and Sari Horwitz. 2016. “Conspiracy Theories Swirl Around the Death of Antonin Scalia.” THE WASHINGTON POST, February 15, 2016.


© Copyright 2019 by author, Jeffrey R. Dudas.