In the time since Justice Antonin Scalia’s untimely death, much has been written about what his influence has been and what his influence will be. It is said that, perhaps more than any of his predecessors, he shaped how lawyers, judges, and even laypeople see the role of unelected federal judges in a democratic society.1 In particular, his theories of originalism and textualism gave us an elegant and compelling way to put into practice the “judicial restraint” that many have urged since the Founding.2 His influence has been attributed not only to the power of his ideas but also to his provocative, attention-generating writing style and his willingness to evangelize to wide audiences.3
Many scholars have tried to quantify how influential Scalia has been. There are studies, for example, showing that Scalia’s colleagues relied less on legislative history over time4 and started citing dictionaries5 and The Federalist6 more often after he arrived on the Court. Other studies show that lower-court judges cite opinions by Scalia more often than any of his colleagues.7 Scholars, too, grapple with Scalia’s ideas more than those of his colleagues.8
In this Essay, we examine what some people have suspected may be Scalia’s most influential sphere of all: legal education. For many of the same reasons he is thought to be so influential in other spheres, it is thought that his ideas are often overrepresented in law school constitutional-law curricula.9 This is despite the fact that Scalia was often not on the winning side in many of the Court’s most high-profile cases during his tenure. The conventional view of Scalia is that, although he may not have contributed much to constitutional-law doctrine, he did contribute a great deal to legal and interpretative theory.10
In this Essay, we try to quantify Scalia’s influence in law school constitutional-law curricula by studying how often his ideas are explored in constitutional-law casebooks. In particular, relative to other justices, we look at how often Scalia’s opinions (for the Court, or his separate opinions) are excerpted in the principal cases and how often he is referred to by name in the notes preceding and following the principal cases.
We find that Scalia is at or near the top of most of the metrics we explore here, but he does not tower over the competition. Indeed, the data reveal that perhaps the most important factor driving inclusion in our casebooks is seniority: chief justices and justices who led their ideological wings of the Court have a great deal of power to assign themselves opinions that are likely to end up in our casebooks. We find that the most notable exception in the data is not Scalia, but Justice Samuel Alito: he is included in our casebooks to an especially surprising extent given that, until this year, he has always been the most junior member of his wing of the Court.
- 1. See Brian Fitzpatrick, Former Clerk on Justice Antonin Scalia and His Impact on the Supreme Court (The Conversation, Feb 24, 2016), archived at http://perma.cc/Z8VT-C7XB; Jeffrey Rosen, What Made Antonin Scalia Great (The Atlantic, Feb 15, 2016), archived at http://perma.cc/AQK5-KLLF.
- 2. See Fitzpatrick, Former Clerk (cited in note 1); Saikrishna Bangalore Prakash, A Fool for the Original Constitution, 130 Harv L Rev F 24, 25–27 (2016).
- 3. See generally Fitzpatrick, Former Clerk (cited in note 1); Yury Kapgan, Of Golf and Ghouls: The Prose Style of Justice Scalia, 9 J Legal Writing Inst 71 (2003).
- 4. See James J. Brudney and Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 Judicature 220, 229 (2006).
- 5. See John Calhoun, Note, Measuring the Fortress: Explaining Trends in Supreme Court and Circuit Court Dictionary Use, 124 Yale L J 484, 505 (2014).
- 6. See Melvyn R. Durchslag, The Supreme Court and the Federalist Papers: Is There Less Here than Meets the Eye?, 14 Wm & Mary Bill Rts J 243, 295 (2005) (noting the increase in citations to The Federalist during the Rehnquist Court, which began with Scalia’s appointment to the Court and Justice William Rehnquist’s elevation to chief justice).
- 7. Frank B. Cross, Determinants of Citations to Supreme Court Opinions (and the Remarkable Influence of Justice Scalia), 18 S Ct Econ Rev 177, 191 (2010).
- 8. See Ralph A. Rossum, Antonin Scalia’s Jurisprudence: Text and Tradition 206 (Kansas 2006).
- 9. See id at 205 (“He has confessed that he writes with the verve and panache he does in part to ensure that his opinions are included in constitutional-law casebooks.”).
- 10. See id; William K. Kelley, Justice Antonin Scalia and the Long Game, 80 Geo Wash L Rev 1601, 1603–04 (2012) (noting how Scalia’s inability to get votes for his positions in many cases was countered by his influence regarding how to interpret both the Constitution and statutes).