Three Supreme Court justices wrote tributes to the late Justice Antonin Scalia in the April Yale Law Journal lauding his lasting influence on the law.
Justices Clarence Thomas, Samuel Alito and Sonia Sotomayor’s fond remembrances of Scalia come as Justice Neil Gorsuch undergoes his first week of oral arguments at the high court, filling Scalia’s seat.
In his tribute, Thomas wrote that Scalia “spared no one” in his writing — including himself.
“His most recent criticism of Auer in Perez v. Mortgage Bankers Association suggested that he had concerns about Chevron deference, which Nino [a nickname for Scalia] had vigorously defended for years,” Thomas wrote. “To Nino, no idea was beyond criticism or review. Not even the theology of the great St. Thomas Aquinas escaped his re-examination: About a month before Nino’s untimely death, he spoke to a group of Dominicans on the occasion of the 800th jubilee of their order. He took the opportunity to — of all things — criticize Aquinas’s thoughts on the role of the judge set out in his Summa Theologica.”
Scalia’s replacement, Gorsuch, shares the late justice’s skepticism of Chevron deference, which held that courts should adhere to executive agencies’ interpretations of certain statutes unless they are found to be unreasonable. Gorsuch’s concurring opinion in Gutierrez-Brizuela v. Lynch urging reconsideration of Chevron deference was lauded by conservative legal scholars boosting Gorsuch’s nomination, who hailed Gorsuch as an originalist in the mold of Scalia.
Originalism is a legal philosophy made popular by Scalia that holds that the Constitution has a static meaning and should be interpreted as it was written. In his tribute of Scalia, Alito noted that the late justice likely “regarded some of the new varieties [of originalists] as imposters.” Alito wrote he thought federal courts’ approach to statutory interpretation has changed dramatically as a result of Scalia’s textualism and originalism on the high court.
Sotomayor’s tribute of Scalia suggested that he influenced her action on the Supreme Court, too. Sotomayor said getting Scalia to change a single word in a given opinion “could require a herculean effort.”
“In a number of our Fourth Amendment cases, his perspective made me take a step back and consider where we are today as a society, and from whence we came,” Sotomayor wrote. “In many respects, he forced me to think more broadly about my own jurisprudence in this area.”
The edition also published an “unpublished opinion” that “was supposedly found among the papers of the late Justice Antonin Scalia” dealing with religious liberty. Much of Scalia’s work on the Supreme Court and D.C. Circuit Court of Appeals will be made available by the Harvard Law School Library in 2020, where the Scalia family donated a collection of his work.
It’s not clear when Scalia wrote the “unpublished opinion” that appears to be a draft blasting the Supreme Court’s ruling on an unidentified case as a “reckless assault on the principle of religious freedom enshrined in the First Amendment.” But Scalia’s writing provides a glimpse into his thoughts on how the Supreme Court handles controversies involving religious liberty, which it will do Wednesday with nine justices for the first time since Scalia’s death.
“The government can and does treat religion as special, because the American people can and do treat religion as special. The state may not discriminate among religions, and a favor available to one must be made available to all,” Scalia apparently wrote in the unpublished opinion. “Accommodations of the sort at issue today may be said to encourage religion in the sense that they reduce the cost to the believer of believing. But a state can make a rational judgment that it is better off with a larger rather than a smaller number of religious believers, as long as it manifests an indifference to which religion they believe.”
On Wednesday, the high court will hear arguments in Trinity Lutheran Church of Columbia v. Comer and look to decide whether Missouri violated the Constitution in its decision to bar a church from a state program that gives nonprofits funding to resurface their playgrounds. Conservatives hope that Gorsuch will follow in Scalia’s footsteps in adjudicating tough questions surrounding religious liberty and tip potential swing votes and left-leaning justices toward the right.
