Justice Scalia recently gave a long and fascinating interview to New York Magazine, which I highly recommend anybody interested in the Court read. My favorite part is the extended exchange with the interviewer about Scalia’s belief in the devil (and the interviewer’s apparent shock at this), which I won’t try to excerpt here.
But I was also interested in some exchanges about Justice Scalia’s “legacy.”
[Senior:] I don’t know how, by your lights, [the Lawrence v. Texas dissent] going to be regarded in 50 years.
[Scalia:] I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.
Here, and in another passage (comparing himself to Justice Sutherland), Scalia professes not to care about whether the country agrees with his views fifty years from now. And yet in the interview he also says:
My tone is sometimes sharp. But I think sharpness is sometimes needed to demonstrate how much of a departure I believe the thing is. Especially in my dissents. Who do you think I write my dissents for?
Exactly. And they will read dissents that are breezy and have some thrust to them. That’s who I write for.
Justice Scalia does indeed write fantastic, enduring dissents. But isn’t the reason to write dissents for law students because one thinks that’s the best way to convince future generations of lawyers that an opinion was mistaken? And isn’t the reason to do that to undermine that decision’s authority so that its errors are one day limited or reversed? I had always thought that was Justice Scalia’s goal in writing the dissents that he does, but that would suggest that he does care about what future generations think about the law.
Yet later, however, Justice Scalia expresses pessimism about the power of his dissents, even his “most impressive” dissent:
As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.
If you read all of these passages together, it sounds like Justice Scalia writes dissents to convince law students that he is right, but is pessimistic about whether that will be enough to cause the precedent to be overturned in the future, and doesn’t really care. Maybe it was a consequence of the condensing and editing, but if that really is what Justice Scalia said, I suspect he was being modest.