What We Lose with Scalia

A number of commentators who do not share the late Justice Scalia’s politics have noted his role in helping progressives sharpen their arguments.  One area in which he certainly played that role was in the debate concerning the citation of international and foreign law in US courts.  In a remarkable series of exchanges, both on and off the bench, Justice Scalia parried with Justices Breyer, Ginsburg and Kennedy on this issue.  And beyond his colleagues, his provocative views triggered an avalanche of law review articles on the subject.

At the end of the day, of course, he was in the minority on this issue, as so many others.  On the current Court, Justice Breyer, Ginsburg, Kennedy, Kagan and Sotomayor are all on record approving of the idea that international and foreign law has a place in domestic adjudication.  But had Scalia not taken up this debate, perhaps it’s fair to say that we would not have had the benefit of the extensive back-and-forth that so clearly illuminated the reasons that the practice is appropriate. 

One commentator has suggested that Justice Scalia’s status as a foreign law deny-er and his dismissive treatment of foreign jurists and their work alienated foreign jurists and diminished the Supreme Court.  More likely, though, foreign jurists appreciated the qualities that Scalia’s political opposites in the US also enjoyed — his good humor, high energy and quick wit — and gave little weight to Scalia’s minority views.  Indeed, after some low points in the 1980s and ’90s, the Supreme Court has re-engaged with the larger world in, for example, its decisions on marriage equality and the juvenile death penalty.  Scalia’s efforts to pull the Court back from that international judicial dialogue may have been provocative, and they certainly were vigorous, but they failed, and the Court’s stature is all the better for it.