The Conservative Revolution of Antonin Scalia

Many hoped or feared that Antonin Scalia’s appointment to the Supreme Court in 1986 would guarantee a conservative counter-revolution that would reverse the liberal jurisprudence of the Supreme Court under Chief Justice Earl Warren and which was continued to some extent under the Burger Court though the influence of Justice William Brennan. In addition, President Reagan described Scalia’s nomination as part of a project to remake the role of the Court, promote an interpretive approach of originalism, and shift authority and discretion to the States. Yet by the time of his death in 2016 it was unclear to what extent Scalia had effected the legal, institutional, or political revolutions that had been anticipated. While the Court did move to the right doctrinally, and reversed or modified many Vinson-Warren-Burger precedents, Scalia’s influence on constitutional jurisprudence turned out to be far less than it could have been, and his ability to persuade other Justices to adopt his legal views—both substantively and methodologically—was less than many mainstream media accounts recognize. Scalia’s institutional and political legacies are similarly complex: he was neither as transformative a figure as some of his allies might have hoped nor so unimportant as some of his detractors might have wished. The fact that his death and the controversy surrounding his replacement is so intense speaks to the fragile legacy that Scalia really has had on the Supreme Court after 30 years. This book will assess Scalia’s legacy in an edited volume that assembles leading legal and political science scholars who will evaluate his impact across a range of jurisprudential, institutional, and political issues.

Table of Contents:

Introduction: Assessing Antonin Scalia’s Place in Supreme Court History
David Schultz and Howard Schweber

Chapter 1: Scalia, Sissies, and Administrative Law
David Schultz

Chapter 2: Justice Scalia’s Modest Employment Discrimination Law Legacy
Henry L. Chambers, Jr.

Chapter 3: Playing Defense in the “Culture Wars”: Justice Scalia on Race, Gender, and Sexual Orientation
Mary Welek Atwell

Chapter 4: Justice Scalia and Criminal Justice: A Mixed Record with Conservative Impact
Christopher E. Smith and Charles F. Jacobs

Chapter 5: Threat and Suspicion: Scalia’s Legacy for A Transnational Judicial Dialogue
Maureen Stobb

Chapter 6: The Anti-Madison: Antonin Scalia’s Theory of Politics
Howard Schweber

Chapter 7: Justice Scalia and the Legal Conservative Movement: An Exploration of Nino’s Neoconservatism
Jesse Merriam

Chapter 8: Justice Scalia and the Originalist Fallacy
Stephen M. Feldman

Chapter 9: The Jurisprudence of Justice Scalia: Common-Law Judging Behind an Originalist Façade
Ronald Kahn and Gerard Michael D’Emilio

Chapter 10: Justice Scalia and Oral Arguments at the Supreme Court
Tim Johnson, Ryan Black, and Ryan Owens

Chapter 11: Justice Scalia’s Concurring Opinion Writing
Ryan J. Owens and Christopher J. Krewson

Chapter 12: Justice Scalia’s Confirmation Hearing Legacy
Alexander Denison and Justin Wedeking

Chapter 13: Was Antonin Scalia a “Great” Supreme Court Justice?
James Staab

About the Editors and Contributors

David A. Schultz is professor of political science at Hamline University.

Howard Schweber is professor of political science at the University of Wisconsin, Madison.

The death of Antonin Scalia on February 13, 2016, marked the end of one of the most consequential careers in American legal history. In 30 years on the Supreme Court, Scalia introduced, articulated, and defended a pathbreaking school of constitutional (and political) thinking, doing so with a jaunty and caustic writing style that was utterly distinctive. This edited volume, featuring 14 chapters by scholarly contributors from the fields of political science, criminal justice, and law, assesses Scalia’s legacy. The chapters include appraisals of Scalia’s jurisprudence, an examination of the impact of his confirmation hearing, and analysis of his role as the avatar of originalism, the idea that the provisions of the Constitution should be interpreted in a way that reflects the intentions of the drafters of those provisions. A controversial doctrine, originalism itself is scrutinized throughout the book, and also in one dedicated chapter. The volume concludes with a contemplation of whether Scalia was a “great” Supreme Court justice, a complicated question about a seminal intellectual thinker on the Court, but one who was not always able to assemble a coalition of colleagues to sign onto his judicial philosophy.



Summing Up: Highly recommended. Upper-division undergraduates through faculty.