29 Pages Posted: 28 Sep 2016
Date Written: September 24, 2016
Justice Antonin Scalia was, by the time of his death last February, the Supreme Court’s best known and most influential member. He was also its most polarizing, a jurist whom most students of American law either love or hate. This essay, styled as a twenty-year retrospective on A Matter of Interpretation, Scalia’s Tanner lectures on statutory and constitutional interpretation, aims to prod partisans on both sides of our central legal and political divisions to better appreciate at least some of what their opponents see — the other side of Scalia’s legacy. Along the way, it critically assesses Scalia’s particular brand of originalism and sketches a living constitutionalist alternative. It concludes by arguing not only that Scalia was a tragic figure who combined elements of greatness with deep flaws, but also that his life and judicial performance hold lessons of profound importance for all who care about our law and our legal culture.
Keywords: Supreme Court of the United States, SCOTUS, Associate Justice Antonin Scalia, jurisprudence, constitutional law, originalism, textualism, living constitutionalism, non-originalism, philosophy, meaning, interpretation, grounds of law
Suggested Citation: Suggested Citation
Berman, Mitchell N., The Tragedy of Justice Scalia (September 24, 2016). Michigan Law Review, Vol. 115, 2017, Forthcoming; U of Penn Law School, Public Law Research Paper No. 16-36. Available at SSRN: https://ssrn.com/abstract=2844778