Postscript: Originalism and Judicial Authority
| Author | Jeremy Waldron |
| Position | University Professor, School of Law, New York University |
| Pages | 137-143 |
PostscriPt: originalism and Judicial authority
Jeremy Waldron*
New York University
Br. J. Am. Leg. Studies 6(1) (2017), DOI: 10.1515/bjals-2017-0008
© 2017 Jeremy Waldron, published by De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
Of course what one wants, in a volume like this, is a reply not by me but by Justice
Scalia himself to the assessments and criticisms offered in these six essays. Sadly, that is
impossible, and I shall not attempt in my comments here to channel Antonin Scalia or to
say what I think he would or should have said.
Nor can I respond to everything in the essays presented here. They pursue a variety
of themes in a variety of ways, some focusing on the distinctive features of Scalia’s own
approach to adjudication, some focusing on patterns of judicial decision-making in which
he has participated substantially, but often as one justice among others. Jane Marriott’s
discussion of campaign nance is an example here; as she notes, Scalia has “rarely
authored a majority campaign nance opinion for the Court.”1 Some are assessments
of patterns of dissent (for example, Ian Loveland’s discussion of the sexual orientation
cases) rather than Scalia’s participation in the actual crafting of Court decisions (James
Pfander’s essay on the law of standing is an example).
Brian Jones and Austin Sarat are convinced that Justice Scalia became, in the eyes
of many people, a “sacred symbol” in the higher judiciary—one of a long and romantic
line of “brilliant and elegant philosopher judge[s]” that include Sir Edward Cook, Oliver
Wendell Holmes and Louis Brandeis.2 There was a sense that his death posed a particular
crisis for conservatives, not just because it might change the balance on the Court but
because it meant the loss of an icon of judicial conservatism, one whose presence had
had a transformative impact on American adjudication.
I am not sure I would use the term “sacred symbol,” even on the denition given at
the end of this essay.3 Its use by Jones and Sarat is a little confusing since they associate it
with the fact that Justice Scalia revealed and humanized his personality as a judge rather
than making himself into a mere mouthpiece of a particular jurisprudence.4 If there was
something sacred in his jurisprudence, it was his readiness to desacralize the pieties of
his colleagues. If he was an icon, it was in the midst of his iconoclasm. He wrote clearly,
straightforwardly, and unequivocally about what seemed to him to be at stake both in
particular cases but also and above all in the theory and ethos of interpretation. Also,
as Jim Allan emphasizes,5 Justice Scalia made himself more than usually available for
* University Professor, School of Law, New York University.
1 Jane Marriott, Tenured Fox in the Democratic Henhouse?, 6 Br. J. am. leg. studies 41 (2017).
2 Brian Christopher Jones and Austin Sarat, Justices as “Sacred Symbols”: Antonin Scalia and
the Cultural Life of the Law, 6 Br. J. am. leg. studies 7 (2017).
3 Id.at 23.
4 Id. at 16-18.
5 James Allan, One of My Favorite Judges: Constitutional Interpretation, Democracy and
Antonin Scalia, 6 Br. J. am. leg. studies 25, 29-31 (2017).
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