After Scalia: A More Collegial Court?

WASHINGTON, DC - OCTOBER 02:  U.S. Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute (AEI) Oct
WASHINGTON, DC - OCTOBER 02: U.S. Supreme Court Justice Antonin Scalia speaks at the American Enterprise Institute (AEI) October 2, 2012 in Washington, DC. The American Enterprise Institute and the Federalist Society held a book discussion with Justice Scalia, who co-authored the book 'Reading Law: The Interpretation of Legal Texts.' (Photo by Alex Wong/Getty Images)

With the passing of Justice Antonin Scalia, the country loses a giant of American law. Scalia's audience was bigger than that of most justices: as the most prominent exponent of originalism and textualism, he was speaking as much to the public, and to present and future law students, as to his colleagues on the Court. He was a great dissenter, who embellished his opinions with language sure to get the attention of casebook writers. His hope was that his views would one day carry the day, as they did for earlier masters of dissent like Oliver Wendell Holmes .

In his love of debate and sheer joy in argument, Scalia embodied a commitment to rigorous pursuit of knowledge. We at the University of Chicago, where he taught before being appointed the federal judiciary, like to think of him as the most prominent exponent of our culture of vigorous discussion. More than most justices, he dwelt in the realm of ideas. But he was also a superb communicator.

Justice Scalia was also the extreme example of a pronounced trend on the Supreme Court: identifying justices with their individual personae rather than as members of a collectivity. His opinions were full of pithy phrases that fit today's 144-character format, even as they heralded an older tradition of rhetorical flourish. Both his conservative and more liberal colleagues were frequent targets of his caustic pen and antiquarian epithets: he was prone to accusing colleagues of jiggery-pokery, argle-bargle, and manufacturing "pure applesauce". These terms sent law professors scurrying to their dictionaries, and inspired the hashtag term #Scaliaism.

Yet, in cultivating outside audiences and reaching to the broader public, Scalia's influence on the Court itself may have suffered. Though personally friendly with his colleagues, he was not always able to persuade them to come around to his views.

Courts are like many other kinds of organizations: to be most effective, they require working in teams. The reputation of the court is a collective product, and the whole is ideally greater than the sum of its parts. As Professor Nuno Garoupa and I argue in our new book , there is a danger when judges emphasize their individual reputations more than that of the larger body of which they are a part. If each judge speaks in their own voice in every case, jurisprudence can seem indeterminate and confusing, and the court's reputation as a whole may suffer. The public may come to see the law as simply political, a product of the nine people who happen to be sitting on the court at any one moment.

Something like this seems to have happened to the US Supreme Court in recent years. Traditionally, it has been one of most trusted institutions in society. But as Eric Posner notes, confidence in the Court has declined for many years, and now more people disapprove of the Supreme Court's performance (50% than approve of it (45%). A recent Pew survey found that 70 percent of Americans believe that the justices "are often influenced by their own political views."

Although John Roberts promised more unanimity when he took the Chief Justiceship, it has been hard to achieve, in no small part because of the outsized pen and personality of Justice Scalia. Many decisions feature multiple opinions which make it hard to know what the law is. With low levels of agreement, and occasionally caustic name-calling, the court now seems to reflect the political polarization that pervades American society more broadly.

Justice Scalia was hardly alone in cultivating an outsized personal reputation. But it seems unlikely that whoever replaces him -- whether before or after the 2016 presidential election, whether Republican or Democrat, whether professor, judge or trial lawyer -- will be able to match his combination of brilliance, wit and ability to communicate powerful ideas, both clearly and broadly. Without a doubt, the passing of Justice Scalia means that we will have a Supreme Court that is less entertaining. A more boring court, however, might not be such a bad thing for American law.