Posted: 30 Nov 2016 Last revised: 18 Aug 2017
Date Written: January 27, 2017
The President promised on the campaign trail to replace Justice Scalia with a judge like Justice Scalia (and Justice Thomas). But what does it mean to be like Justice Scalia? It surely means more than just being "conservative." This study proposes three empirical measures of what made Justice Scalia Justice Scalia. First, how often does a judge promote or practice originalism? Second, how often do they cite to Justice Scalia's non-judicial writings, writings that were not about the substance of the law but about how to think about interpreting the law. And third, how often does a judge write separately, something Justice Scalia did 25.9% of the time when he was not writing the majority opinion over his last 20 years on the court. The study then applies those measures to potential nominees, and provides a metric for determining just how Scalia-like they are: The Scalia Index Score. While not without its limitations, this metric provides an objective way to evaluate how much a potential nominee is like the famous jurist they may replace.
We have updated the paper in light of recent developments (see pages 12-15). Specifically, the shortlist is now rumored to be down to three names: Gorsuch, Hardiman, and Pryor. We have calculated the "likelihood" that the potential nominees will be the most Scalia-like of the group, and for comparison’s sake have added data on Chief Justice John Roberts and Justice Samuel Alito from their time on the D.C. Circuit and Third Circuit, respectively. We find that Gorsuch (62.2-79.4%) and Pryor (70.5-76.7%) have much higher likelihoods of being the most Scalia-like of the potential nominees than Hardiman (34.8-42.9%). In fact, Hardiman looks more like John Roberts (32.6-33.7%) or Samuel Alito (39.4-52.8%) did when they were federal appellate judges.
Keywords: Supreme Court, Judicial Behavior, Scalia, Originaism
Suggested Citation: Suggested Citation
Kidd, Jeremy and Dasgupta, Riddhi Sohan and Walters, Ryan D. and Phillips, James Cleith, Searching for Justice Scalia: Measuring the 'Scalia-ness' of the Next Potential Member of the U.S. Supreme Court (January 27, 2017). Available at SSRN: https://ssrn.com/abstract=2874794