Justice Antonin Scalia, a figurehead of textualism and originalism, left a legacy that appears distinguished on the surface. He is frequently referenced by sitting justices and Supreme Court advocates, and his once-controversial dissent in Morrison v. Olson could be echoed in the pending Trump v. Slaughter, where presidential powers over independent agency heads are under review. However, beneath this admiration lies a more complex and, at times, contradictory legacy.
Several of Justice Scalia’s cornerstone jurisprudential stances have been rejected by his successors. For example, while he was an early advocate of Chevron deference, it was explicitly cast aside in Loper Bright v. Raimondo by a conservative majority. Additionally, Employment Division v. Smith, a defining case in religious exemptions, has faced criticism from conservative justices like Samuel Alito.
A similarly intricate portrait is evident in Mirabelli v. Bonta, where the conservative bloc endorsed a parental substantive due process right—the very notion Scalia deemed unenforceable at the federal level. In another twist, liberal justices, including Elena Kagan, have sometimes aligned more closely with Scalia’s textualist methods in key disputes such as West Virginia v. EPA.
Scalia’s influence extended to interpretive methods like originalism, where his preference for the “original public meaning” of the constitutional text was expected to guide major rulings. However, cases such as Dobbs v. Jackson Women’s Health and United States v. Rahimi pivoted towards a focus on “history and tradition” instead.
Justice Scalia’s stance on agency deference has also seen notable shifts. Although once a Chevron stalwart, he began reversing his position towards the latter part of his career, notably questioning Auer deference, a doctrine named after one of his opinions.
As the discourse around Scalia’s legacy continues to evolve, legal professionals are left to consider whether the shifts away from his core principles by his ideological successors imply potential weaknesses or untested assumptions in his judicial philosophy. Through cases and citations, legal professionals are tasked with balancing reverence for his contributions against the dynamic and sometimes conflicting trajectories of the Supreme Court’s interpretations. For additional insights into Scalia’s complex legacy, Richard Re’s detailed exploration can be found in his article on SCOTUSblog.