I think this overstates the case. Justice Scalia’s legacy (on original meaning and other issues) is carried on by Justice Barrett. And where the conservative legal movement departs from Scalia’s positions, it justifies those departures by arguing from within his methodology (Bruen, Loper Bright, and the anti-Smith literature being clear examples).
As you’ve noted elsewhere, even as the current Court realigns, it can be distinguished from the Warren Court by holding itself to a higher standard of intellectual rigor and consistency, even where that results in setbacks for conservatives in individual cases (Fulton, CFSA). Perhaps that is Scalia’s most durable legacy.
I’ve become quite cynical of all these formal interpretative methods. They seem like nothing more than fancy labels or justifications for the outcome SCOTUS wants. It’s hard to understand why the press and professors are so unwilling to acknowledge SCOTUS’ outcome based approach.
I found the author's reasoning in this piece somewhat odd. To the extent that the issue is whether the current conservative Supreme Court justices are in line with Justice Scalia's legacy, that should not be a matter of whether they deviate from his *positions*. His positions might have rested on a misapplication of his favored interpretive methods (yes, people do misapply their own theories). It's deviation from those methods that would mark a real departure from his legacy. The problem is that Justice Scalia never had a well developed methodology that he followed with real consistency. And the originalist justices on the Court differ on what it is to apply originalism or textualism, even when they agree on the outcomes of cases.
The justices just applied substantive due process using only precedent (not history or tradition) at a high level of generality in Mirabelli. That seems like a departure from both a position and a favored interpretive method of Scalia's.
I think this overstates the case. Justice Scalia’s legacy (on original meaning and other issues) is carried on by Justice Barrett. And where the conservative legal movement departs from Scalia’s positions, it justifies those departures by arguing from within his methodology (Bruen, Loper Bright, and the anti-Smith literature being clear examples).
As you’ve noted elsewhere, even as the current Court realigns, it can be distinguished from the Warren Court by holding itself to a higher standard of intellectual rigor and consistency, even where that results in setbacks for conservatives in individual cases (Fulton, CFSA). Perhaps that is Scalia’s most durable legacy.
I’ve become quite cynical of all these formal interpretative methods. They seem like nothing more than fancy labels or justifications for the outcome SCOTUS wants. It’s hard to understand why the press and professors are so unwilling to acknowledge SCOTUS’ outcome based approach.
I do not think Major Questions Doctrine is on its face anti-(non?) textualist. Rather it seems to be a method of reading or understanding the text.
I found the author's reasoning in this piece somewhat odd. To the extent that the issue is whether the current conservative Supreme Court justices are in line with Justice Scalia's legacy, that should not be a matter of whether they deviate from his *positions*. His positions might have rested on a misapplication of his favored interpretive methods (yes, people do misapply their own theories). It's deviation from those methods that would mark a real departure from his legacy. The problem is that Justice Scalia never had a well developed methodology that he followed with real consistency. And the originalist justices on the Court differ on what it is to apply originalism or textualism, even when they agree on the outcomes of cases.
The justices just applied substantive due process using only precedent (not history or tradition) at a high level of generality in Mirabelli. That seems like a departure from both a position and a favored interpretive method of Scalia's.
I think you meant to reply to a different commenter.
I wrote about this phenomenon a couple of years ago. Mirabelli is indeed an interesting new data point. https://slate.com/news-and-politics/2024/06/supreme-court-opinions-antonin-scalia-betrayal.html