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How Scalia Became The Most Influential Conservative Jurist Since The New Deal

Think of the Supreme Court as a small group of lawyers who meet up in Washington several times a year to discuss and debate a variety of important topics. When they finish debating, they get together with a small staff of recent law school graduates and write up their opinions. Then, if more of them say one thing rather than another, our entire legal system — whether it agrees or not — acts as if it were true.

In a debating society like this, a member with the most persuasive voice and forceful arguments can play an outsize role, and that is what Justice Antonin Scalia did for nearly 30 years before his death on Saturday. His staunch and consistent advocacy for “originalist” methods of legal interpretation — the philosophy that a law’s meaning doesn’t change over time and should be interpreted as a “reasonable person” would understand the text at the time it was passed — raised his profile on the court and made him perhaps the most influential figure in our legal system since his appointment.

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The tangible effects of Scalia’s philosophy were manifold, delighting some and disgusting others. Between 1986 and 2014 he was the deciding vote on 342 decisions, according to the The Supreme Court Database, and voted on the “conservative” side 284 times in these decisions.

To get a sense of Scalia’s impact, I tallied up all mentions of justices by name in Google’s n-gram data set of words and phrases from scanned books. I found that Scalia has been the most written-about jurist in American English for most of the last 15 years. The last justice to receive such attention was the liberal icon William Brennan; Scalia is by far the most conservative justice to earn this distinction since 1940, as shown in this chart:

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Scalia expressed his opinions vigorously, willfully refusing to change with the times. His acerbic but entertaining writing style helped assure that his opinions were (and will continue to be) read by generations of law students. When on the losing side of a decision, Scalia often took the opportunity to formally opine, and he was known for his lecturing and sometimes caustic dissents. When in the minority, Scalia wrote a dissenting opinion 54 percent of the time (compared to 45 percent for the rest of the court over the same period):

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His dissents also sometimes got him in trouble. For example, in United States v. Windsor, the landmark 2013 decision in which a 5-4 court struck down the key part of the Defense of Marriage Act and allowed federal benefits for married same-sex couples, Scalia bitterly disagreed and wrote these soon-to-become famous words in his dissent:

The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “bare … desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.

By suggesting a larger application for the Windsor decision, Scalia unintentionally expanded the influence of the majority opinion he so disliked. Within months, lower-court judges were citing his dissent to strike down bans on gay marriage in a dozen states.

But as famous as Scalia’s scathing attacks on the majority may be, he relished the opportunity to use the power of the pen just as much from the winning side, where he wrote an opinion of one form or another 26 percent of the time (compared to 19 percent for the rest of the court):

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Although up to the discretion of the Chief Justice, it is standard practice for justices to be assigned a relatively equal number of opinions to write each term, meaning Scalia’s much higher volume results from his frequently writing concurring opinions. These are generally unnecessary from a legal standpoint, but they give judges the opportunity to qualify their support, to make additional arguments for the decision or against the minority, or to signal where they would have been willing to go further.

Scalia has repeatedly used his powers of word and deed to explain and demonstrate his vision for how an originalist jurisprudence should look. Realist legal critiques would suggest that Scalia’s formalism was a kind of rationalization for the conservative outcomes to which he was predisposed, but there was little new about the philosophy of originalism he espoused. As Google’s n-gram viewer shows, many terms similar or related to that philosophy have been in use since long before Scalia came on the legal scene:

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People have often accused judges of straying too far from their obligations, but our language for making such charges has changed. The legal concept of “strict construction” has been around since the 1800s (and even George W. Bush used that phrase to describe his favored type of justice), but has declined in prominence with the development of other terminology.

In the 1950s and ’60s we can see the rise of the viscerally more compelling term “judicial activism.” Nobody wants that — whatever it is — but it’s vague and can apply to any decision a critic dislikes. Shortly after Scalia was appointed, his preferred language of “originalism” and the related idea of “textualism” — that the plain language of a law trumps legislative intent — began to dominate the legal conversation.

Despite their superficial similarity, Scalia bristled at the idea that his approach was the same as its predecessors. In a 1995 lecture he said, “Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute.”

Thus what seemed like variations on a theme became a paradigm shift. Scalia changed the way we talk about the court and about how judges should judge. And those changes in language have reinvigorated conservative jurisprudence.

Benjamin Morris researches and writes about sports and other topics for FiveThirtyEight.

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