Deep Tracks: Album Cuts that Help Define The Essential Scalia

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New York University




Jeff Sutton and Ed Whelan have collected some of Justice Scalia’s “greatest hits” in a volume entitled The Essential Scalia: On the Constitution, the Courts, and the Rule of Law. The book is an excellent introduction to the jurisprudential thought and literary style of one of the most influential legal thinkers—and legal writers—in modern times. As with any “greatest hits” compilation, however, there are inevitably going to be key “album cuts” for which there will not be space. This essay seeks to supplement Sutton and Whelan’s invaluable efforts by surveying three of those “deep tracks” that shed particular light on Justice Scalia’s contributions to legal thought. The first opinion, a lone concurring opinion in NLRB v. Int’l Brotherhood of
Electrical Workers Local 340
, dates from Justice Scalia’s first term on the Court and illuminates his interpretative methodology, his jurisprudential focus, and his unique take on precedent. The second opinion, Zuni Public School Dist. No. 89 v. Dep’t of Education, is a dissent by Justice Scalia that may exemplify his approach to statutory interpretation better than any other decision, if only by way of contrast between his approach and that of other justices. The third opinion, Melendez-Diaz v. Massachusetts, starkly pitted Justice Scalia against a phalanx of conventionally labeled “conservative” justices (aligned with Justice Breyer) on one of the most impactful constitutional questions to reach the Supreme Court in recent decades. It sharply highlights the key, and oft overlooked, ambiguity regarding what it means to be a conservative jurist and a constitutionalist jurist. Collectively, these opinions show how, in order to understand some of the most important currents in modern law, one needs the essential Scalia – and The Essential Scalia.

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