Richard Re wrote a characteristically insightful post evaluating Justice Scalia's "uncertain legacy." Richard makes a fair point that many of Justice Scalia's most important jurisprudential contributions have fallen out of favor by conservatives. Chevron was reversed in Loper Bright. Auer was scaled back in Kisor. Employment Division v. Smith was nearly reversed in Fulton, but was saved by Justices Kavanaugh and Barrett. Mirabelli embraced the sort of substantive due process that Justice Scalia rejected, particularly in Troxel v. Granville. Moreover, while Justice Scalia championed textualism and original public meaning originalism, the modern Court has gravitated towards "history and tradition" in Bruen and Rahimi. The tariffs ruling, especially Justice Barrett's concurrence focused on "common sense," a concept that Justice Scalia likely would have dismissed. There are more such examples.
Richard posits two counterfactuals. In Earth 2.0, what would have happened to Justice Scalia's legacy had Hillary Clinton prevailed in the 2016 election?
In another sense, however, Scalia's legacy has suffered a misfortune. Imagine for a moment that Hillary Clinton had won the presidency in 2016 and, as a result, the Supreme Court had become decidedly liberal for the next generation. In that alternate universe, conservatives would still be able to point to Scalia as a visionary. Untested by success, Scalia's views on textualism, originalism, agency deference, religious exemptions, executive unitarianism, and all the rest would remain pristine. Admirers might continue to extol his unrealized project. In fact, however, Scalia's own disciples are the ones who are quietly altering, ignoring, or repudiating many of his views. And if even the persons most committed to the justice cannot quite bring themselves to adhere to his foundational ideas, then one must wonder about the ideas themselves.
